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 A GUIDE TO THE
SIAC ARBITRATION
RULES
SECOND EDITION

JOHN CHOONG
Freshfields Bruckhaus Deringer, Hong Kong

Mark MANGAN
Dechert LLP. Singapore

NiIcHOLas LINGARD
Freshfields Bruckhaus Deringer, Singapore

OXFORD
UNIVERSITY PRESS
 OXFORD
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 FOREWORD TO THE SECOND EDITION

Since its inception in 1990, the Singapore International Arbitration Centre (SIAC) has seen
dramatic growth. During the past 25 years, SIAC has established itself as one of the world’s
premier arbitral institutions, with a rapidly growing and increasingly international caseload.
In 2016, SIAC saw an unprecedented 343 new cases filed—almost quadruple the number
of new cases filed a decade ago—involving parties from 56 different nationalities. 2016 was
a milestone year in other respects too, with a record 308 new SIAC-administered cases and
a record total sum in dispute of $$17.13 billion. Even more impressive numbers are antici-
pated in 2017.
SIAC'’s success is due in no small part to its regular review and revision of its arbitration rules
to better serve its users needs. The latest revision, culminating in the 2016 SIAC Rules (6th
edition), is the fruit of a year of hard work by SIAC’s Rules Revision Committee, as well as
a collaborative and wide-ranging public consultation process, with nearly 1000 comments
received from users in jurisdictions in Asia, Europe, the Middle East, Africa, and North
America. The draft Rules were also tested using various hypothetical scenarios in small group
sessions involving the SIAC Secretariat and arbitration counsel. These remarkable efforts are
a testament to SIAC’s growing international importance.
The 2016 SIAC Rules, which came into effect on 1 August 2016, have drawn widespread
praise since their introduction. In addition to reflecting and consolidating best practices in
international arbitration, they also introduce a number of first-in-class innovations, includ-
ing a provision on the early dismissal of claims and defences—the first of its kind by any
major commercial arbitration institution. The 2016 SIAC Rules also contain new joinder
and consolidation provisions to deal with complex multi-party and multi-contract disputes,
as well as welcome enhancements to SIAC’s popular emergency arbitration and expedited
procedure mechanisms. The 2016 SIAC Rules have also delocalized the seat of arbitration,
which is no longer Singapore by default under the SIAC Rules, reflecting the increasingly
multi-national and diverse composition of the parties who arbitrate at SIAC.
The second edition of this book is a timely and thoughtful commentary on the 2016 SIAC
Rules. It updates and expands on the book’s well-received previous edition, providing an
even more comprehensive treatment of the SIAC Rules in light of recent developments,
judicial decisions and awards. It also includes in-depth discussion of SIAC’s Investment
Arbitration Rules. The book’s comprehensive rule-by-rule analysis and its comparative treat-
ment of the SIAC Rules no doubt reflects the significant experience of the authors and the
impressive range of their respective practices. Its practical and strategic orientation will be
welcome to practitioners and students of international arbitration alike.
 Foreword to the Second Edition

This book is a critically important resource for all students, arbitration practitioners, aca-
demics, policy-makers, and judges interested in international arbitration. |commend it to
readers in Singapore and around the world, who I believe will benefit tremendously from its
contributions.

Gary B. Born
President
SIAC Court of Arbitration

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 INTRODUCTION

[t is a pleasure to offer this brief introduction to the second edition of A Guide to the SIAC
Arbitration Rules. The introduction, which is in effect a guide to a guide, need not be long.

The Singapore International Arbitration Centre has gone from strength to strength since
Mark Mangan, John Choong, and I wrote the first edition of the Guide for publication
in 2014. The foundation of SIAC’s success is its tried-and-true, but still flexible, rules. It
is significant, therefore, that SIAC issued the 6" edition of the SIAC Arbitration Rules in
August 2016 and the inaugural 1 edition of the SIAC Investment Arbitration Rules in
January 2017.
The SIAC Arbitration Rules, in all editions, are much in use: SIAC announced an all-time
record high of 343 new case filings in 2016—the institution's 25" anniversary—with a total
value approaching SGD 17 billion (USD 12 billion). There is an ever-growing body of pro-
cedural practice or “jurisprudence” available, which is perhaps most conveniently collected
and summarized in this updated Guide.
As for the new Investment Arbitration Rules, it is only a matter of time before parties begin
to utilize them for contract and treaty investment disputes. It is a safe assumption that, as
with other investor-state treaty awards, SIAC awards issued under the new rules will be pub-
lished for the benefit of all. It is highly likely that readers of the third edition of the Guide will
find a chapter surveying SIAC investment arbitration developments, both in procedure and
substantive international law.
Returning to the present moment, this second edition of the Guide, like the first, is meant to
assist both arbitrators and counsel. SIAC sets the highest standards for arbitrators, as illus-
trated by the selection criteria for inclusion on the SIAC Panel of Arbitrators. These include
at least 10 years of post-qualification experience, experience as arbitrator in five or more
arbitrations, the completion of at least two commercial arbitration awards, and extensive
personal references. This volume will assist such experienced arbitrators who are embarking
on their first SIAC arbitration, and refresh the knowledge of even veteran SIAC arbitrators.
As for counsel appearing before such highly qualified SIAC arbitrators, the usefulness of the
updated Guide is self-evident: whether a party representative is appearing in his or her first,
tenth, or 25" SIAC arbitration, the need to be more than fully prepared is paramount.
The authors have structured this volume to these ends.

The first two chapters set the broad scene. Chapter 1 describes Singapore as an exceptionally
supportive jurisdiction for international arbitration, on the government, legislative, judicial,
and logistical fronts. Chapter 2 details the supportive legal framework for arbitration in
Singapore, focusing on the domestic and international legislation in effect and the exemplary
experience of the Singapore courts in dealing with challenge and enforcement of awards.

vii
 Introduction
I
The next chapters introduce SIAC itself. Chapter 3 is an overview of SIAC’s organizational
history and the evolution of the Arbitration Rules since 1991. Chapter 4 details the cur-
rent corporate structure: Board of Directors, Court, CEO, Secretariat, and overseas liaison
offices.

Chapters 5 through 14 draw the roadmap to day-to-day procedural practice, tracing the
SIAC Arbitration Rules from Rule 1 to Rule 37 and citing relevant SIAC Practice Notes and
case law:

- Chapter 5: “Starting the Arbitration” (Rules 1 to 4)

- Chapter 6: “Expedited Arbitration” (Rule 5)
- Chapter 7: “Multiple Contracts, Consolidation, Joinder, and Intervention” (Rules 6 to 8)
- Chapter 8: “Formation and Challenge of the Arbitral Tribunal (Rules 9 tol8)
- Chapter 9: “The Conduct of Proceedings” (Rules 19 to 26)
- Chapter 10: “Jurisdiction of the Tribunal” (Rule 28)
- Chapter 11: “Early Dismissal of Claims and Defences (Rule 29)
- Chapter 12: “The Powers of the Tribunal” (Rules 27 and 31)
- Chapter 13: “Interim and Emergency Relief” (Rule 30)
- Chapter 14: “Awards” (Rules 32 and 33)
- Chapter 15: “Costs” (Rules 34 to 37)
Thereafter, Chapter 16 covers miscellaneous matters addressed in Arbitration Rules 38 to
41, including exclusion of liability and confidentiality. Chapter 17 explains SIAC’s role in
supporting ad hoc arbitrations, for example under the UNCITRAL Rules. Chapters 18 and
19 provide brief specialist background on domestic Singapore arbitration and investment
arbitration, respectively.
Readers of this second edition of the Guide will particularly benefit from those chapters
addressing new developments since 2014. The 2015 SIAC Code of Ethics for an Arbitrator
is referenced throughout. Chapter 7 details the innovative approaches in the 6" edition 2016
Arbitration Rules to the complex area of multi-party arbitration. Chapter 11 surveys the early
dismissal avenues in Arbitration Rule 29, first introduced in the 2016 Arbitration Rules.
Also useful is the description of SIAC’s Practice Note on the Appointment of Administrative
Secretaries, first released in 2015; the Note covers not only the circumstances warranting use
of a tribunal secretary, but also practical guidelines on fees and expenses.
Chapter 13 on emergency arbitration merits special attention. SIAC was the first Asian
arbitral institution to provide emergency arbitrator services, and it has since become a world
leader—if not the world leader—in this important area. Between 1 July 2010 and 31 March
2017, SIAC accepted 57 emergency arbitrator applications, 28 of which were granted (4 by
consent).

Chapter 14, to conclude, where is SIAC in relation to the front-burner issue of arbitrator
gender diversity? SLAC has signed the Equal Representation in Arbitration Pledge launched
in 2016. SIAC also puts its values into practice. According to the 2016 Annual Report, of
the total of 167 arbitrators appointed by SIAC itselfin 2016, 38—almost 25 per cent—were
women, as compared to the 3.4 per cent appointed by the parties or co-arbitrators.

Prof Lucy Reed

27 November 2017

viii
 PREFACE AND ACKNOWLEDGEMENTS

The genesis ofthe first edition ofthis book lay in the realization ofits authors (Mark Mangan,
Lucy Reed, and John Choong) that there was not an authoritative text on SIAC arbitration,
even though SIAC was well-established as a regional leader in arbitration and the SIAC Rules
are among the most popular globally. The idea was to write a comprehensive guide to the
SIAC Rules—their history, interpretation, and application—with the aim of assisting actual
and prospective SIAC users.
That ambition appears to have been realized. By all accounts the first edition of A Guide to
the SIAC Arbitration Rules (OUP 2014) was warmly received by the Singapore domestic and
international arbitration communities. It was also relied upon by the Singapore High Court
in AQZ v ARA' when upholding a SIAC award.
The authors are pleased to present this second edition in the hope thar it, too, will contribute
to the practice of arbitration in Singapore and SIAC arbitrations more generally wherever
they may be held. In particular, this edition is intended to illuminate and further the inter-
pretation and application of the sixth edition of the SIAC Rules, released on 1 August 2016,
and the first edition of the SIAC Investment Arbitration Rules, which entered into force on
1 January 2017.
In addition to the SIAC rule changes, there have been personnel changes in the author team.
Of those that wrote the first edition, Mark Mangan now leads Dechert’s international arbi-
tration practice in Singapore; Lucy Reed has joined the National University of Singapore as
the Director of its Centre for International Law and is a prominent arbitrator who has kindly
contributed an Introduction for the second edition, while John Choong leads Freshfields’
arbitration practice in Hong Kong. Nicholas Lingard, who heads Freshfields’ arbitration
practice in Singapore and Tokyo, has joined the author team for the second edition.
While it is one thing to have an idea, it is quite another to bring that idea to fruition. For the
second edition, this took the support of the international arbitration groups of Dechert and
Freshfields.

Specifically, Mark Mangan and the Dechert Singapore arbitration team developed and
updated the original 16 chapters of the first edition (ie Chapters 1-6, 8-10, and 12-18
of the second edition). Most critical were the efforts of Henry Defriez, Claire Chong, and
Ananya Mitra of Dechert all of whom helped develop specific chapters. Valuable research
and analysis were also provided by Sean Sim and Wong Yan Yee of Singapore Management
University, Anushka Shah of Government Law, Mumbai College, as well as Dechert interns,
Si Hui Lin of Singapore Management University, and Manu Misra of Bocconi University.
A special thanks is due to Geslyn Ang for tirelessly implementing the Dechert team’s edits.

' AQZ v ARA [2015] SGHC 49, 13 February 2015, para 135, Justice Judith Prakash: ‘Additionally, the
learned authors of A Guide to the SIAC Arbitration Rules point out that the ICC’s new emergency arbitrator
provisions expressly state that they donot apply inthe context of arbitration agreements that were entered into
befor the newe ICC rules came into force: at para 7.10. footnote 14; see ICC Rules (2012), Art29(6).’
 Preface and Acknowledgements
a ee een ce cence poe
The second edition also includes three new chapters written by the Freshfields team to
cover the precedent-setting innovations introduced in the 2016 SIAC Rules (namely, mul-
tiple contracts, consolidation, and joinder in Chapter 7 and the early dismissal ofclaims in
Chapter 11), as well as the new SIAC Investment Arbitration Rules (which are in Chapter
19). John Choong and Nicholas Lingard offer their particular thanks to Kate Apostolova,
Simone Hui, and Peter Chang. David Tebel, Niklas Berntorp, Shirin Chua, Emily Stennett,
and Subhajit Banerji also provided much-appreciated research assistance at Freshfields.
Numerous people outside Freshfields and Dechert also made valuable contributions to the
second edition. In particular, we thank the staff at Oxford University Press, especially Faye
Mousley, Katie Hooper, Liana Green, and Sara Kehoe, for the expertise, professionalism,
and support they demonstrated throughout the preparation of this second edition. While
the book does not necessarily reflect the views of SIAC, and is not an official SIAC commen-
tary, we are grateful for the support given by the officers and staff at SIAC, including Gary
Born (SIAC President), who has generously provided a Foreword to the second edition, as
well as Lim Seok Hui (CEO), Delphine Ho (Registrar), and Kevin Nash (SIAC Deputy
Registrar). A special thank you is appropriate for Christopher Bloch and Khyati Raniwala
(both associate counsel at SIAC), who shared their experiences and insights regarding the
application of the SIAC Rules. We hope SIAC’s reward will lie in many of the questions that
would otherwise have been directed to the institution in future being answered in the pages
of this book. The authors are also grateful for the published reviews on the first edition writ-
ten by Dr Michael Hwang SC, Professor Jan Paulsson, and Albert Monichino QC, as well
as the Foreword written generously by Dr Michael Pryles (who was a supporter of the book
from its inception in 2010).
While the second edition of A Guide to the SIAC Arbitration Rules owes much to those just
named and others who have contributed generously of their time, the authors accept respon-
sibility for the content (and any errors) in the chapters for which they are responsible. The
views expressed herein are not necessarily those of our respective firms or of our clients.
John Choong
Mark Mangan
Nicholas Lingard
Singapore
October 2017
 CONTENTS

Table ofCases
Table ofLegislation
List ofAbbreviations
Author Biographies

1. Arbitration in Singapore

A. Singapore as a Place for International Arbitration

B. The Rise of SLAC
C. Key Developments since the First Edition of the Book
D. Structure and Content of A Guide to the SIAC Arbitration Rules

2. Legal Framework for Arbitration in Singapore

A. The Singapore Legislative Framework for Arbitration
B. Singapore Court Supervision and Assistance
©. Challenge and Enforcement of Awards in Singapore

3. Introduction to SIAC Arbitration

A. Brief History of SIAC

. The 1991, 1997, and 2007 SIAC Rules
. The 2010 SIAC Rules
. The 2013 SIAC Rules
. The 2016 SIAC Rules
The SIAC Investment Arbitration Rules
. SIAC Domestic Arbitration Rules
mo
wD
oO
ors. Ad Hoc Arbitrations, Bunker Claims Procedure,
Arb-Med-Arb Protocol, and Derivatives Arbitration
a Graphical Overview of the 2016 SIAC Rules

4. SIAC Corporate Structure

A. The Board of Directors
B. The SIAC Court
C. The CEO
D. The Secretariat
E. Overseas Liaison Offices
 Contents

5. Starting the Arbitration (SIAC Rules 1 to 4)

A. Rule 1—Scope of Application and Interpretation 5.02
B. Rule 2—Notice and Calculation of Periods of Time 5.26
€. Rule 3—Notice of Arbitration 5.45
D. Rule 4—Response to the Notice of Arbitration 5.76

6. Expedited Proceedings (SIAC Rule 5)

A. Efficiency and Expedition under the SIAC Rules 6.02
B. Rule 5.1—Circumstances in which the Expedited Procedure
May Be Appropriate 6.06
€ Rule 5.2—The SIAC Expedited Procedure 6.19
. Rule 5.3—The SIAC Expedited Procedure Prevails over an Arbitration
Agreement which Contains Contrary Terms 6.38
Rule 5.4—Discontinuing the Application of the Expedited
Procedures to an Arbitration 6.43

7. Multiple Contracts, Consolidation, Joinder, and Intervention

(SIAC Rules 6 to 8)
7s Multiple Contracts and Multiple Parties 7.02
B. Rule 6—Multiple Contracts 7.06
C. Rule 7—Joinder and Additional Parties 7.18
DD. Rule 8—Consolidation 7.59

8. Formation and Challenge of the Arbitral Tribunal (SIAC Rules 9 to 18)

A. Rule 9—Number and Appointment of Arbitrators 8.02

- Rule 10—Sole Arbitrator 8.26
. Rule 11—Three Arbitrators 8.34
. Rule 12—Multi-party Appointment of Arbitrator(s) 8.45
Rule 13—Qualifications of Arbitrators 8.49
Rule 14—Challenge of Arbitrators 8.87
- Rule 15—Notice of Challenge 8.90
- Rule 16—Decision on Challenge 8.108
Rule 17—Replacement of an Arbitrator 8.116
oe
ew
Se
Moo
Rule 18—Repetition of Hearings in the Event of
Replacement of an Arbitrator 8.122

9. The Conduct of Proceedings (SIAC Rules 19 to 26)

A. Rule 19—Conduct of the Proceedings
9.03

xii
 Contents

Rule 20—Submissions by the Parties

Rule 21—Seat of the Arbitration
. Rule 22—Language ofArbitration
Rule 23—Party Representatives
Rule 24—Hearings
. Rule 25—Witnesses
TOA™PON
. Rule 26—Tribunal-appointed Experts

10. Jurisdiction of the Tribunal (SIAC Rule 28)

A. Rule 28—Prima Facie Challenges to the Jurisdiction of SIAC

B. Key Principles Underpinning the Jurisdiction of a SIAC Tribunal
C. The Determination of Jurisdictional Objections by the Tribunal
D. Set-off Defences

hi. Early Dismissal of Claims and Defences (SIAC Rule 29)

A. Introduction to Early Dismissal in International Arbitration

Rule 29.1—Scope of Early Dismissal
Rule 29.2—The Early Dismissal Application
. Rule 29.3—Discretion of the Tribunal
»
eof
Rule 29.4—Decision of the Tribunal

12. The Powers of the Tribunal (SIAC Rules 27 and 31)

A. Rule 27—Additional Powers of the Tribunal
B. Rule 31—Applicable Law, Amiable Compositeur, and ExAequo et Bono

1d. Interim and Emergency Relief (SIAC Rule 30)

A. Rule 30.1—Interim Relief from a Tribunal
B. Rule 30.2—Application for Emergency Relief from
an Emergency Arbitrator
C. Rule 30.3—Interim Relief from a Court

14. Awards (SIAC Rules 32 to 33)

A. Rule 32—The Award
B. Rule 33—Corrections and Interpretations of Awards
and Additional Awards

15. Costs (SIAC Rules 34 to 37)

15.02
A. Arbitration and Litigation Costs Compared

xiii
 Contents

Costs in SIAC Arbitration 15.10

SIAC Arbitration Costs Compared to those of the ICC and the HKIAC 15.28
. Rule 34—Fees and Deposits 15.30
Rule 35—SIAC Costs of the Arbitration 15.51
Rule 36—Tribunal’s Fees and Expenses 15.55
O™m
MOO
w . Rule 37—Party’s Legal and Other Costs 15.64

16. Miscellaneous Provisions (SIAC Rules 38 to 41)

A. Rule 38—Exclusion of Liability 16.02

B. Rule 39—Confidentiality 16.11
C. Rule 40—Decisions of the President, the Court, and the Registrar 16.40
D. Rule 41—General Provisions 16.48

b7. Ad Hoc Arbitration

A. Introduction to Ad Hoc Arbitration 17.03
B. SIAC Support of Ad Hoc Arbitration 17.15

18. SIAC Domestic Arbitration

A. The SIAC Domestic Arbitration Rules 18.02

B. The SIAC Summary Award Procedure under the 2007,
2010, and 2013 SIAC Rules 18.06
C. Domestic Arbitrations under the 2016 SIAC Rules
18.23

19. SIAC Investment Rules

A. Introduction 19.03
B. Key Provisions of the SIAC IA Rules
19.13

Appendix 1: 2016 SIAC Rules

335
Appendix 2: SIAC Investment Arbitration Rules (First Edn 2017)
355
Appendix 3: SIAC Code of Ethics for an Arbitrator (2015)
375
Appendix 4: Singapore International Arbitration Act (Ch 143A,
2002 Rev Edn) 377
Index
407

xiv
 TABLE OF CASES

A Best Floor Sanding Pty Lid v Skyer Australia Pty Ltd (1999] VSC 170 (Supreme Court of
ee ETE et A eee 10.32
iii i 6.21
AAY v AAZ [2011] 1 SLR 1093 (Singapore High Court) . . . 2.68, 16.13, 16.19, 16.30, 16.17, 16.n19
Abdul Salam Asanara Pillai v Nomanbhoy & Sons Pte Ltd (2007) 2 SLR 856, [2008]
OTe
ne ee ee 10.47, 12.32, 12.36, 12.n43, 18.19, 18.n3]
ABOP LLC v Qtrade Canada Inc (2007) 284 DLR (4th) 171 (British Columbia Court of

Accession Mezzanine Capital LP and Danubius Kereskedihdz Vagyonkezelé Zrt v Hungary (ICSID
Core Pia ARBI12/5, Awrard. Apel 17, 2095) noc cccansccencssacaneaneasduenene 11.n13
ACD Tridon v Tridon Australia (2002) NSWSC 896 (Supreme Court of New South Wales)... . 10.135
ADG and another v ADI and another [2014] 3 SLR 481, [2014] SGHC 73 (Singapore High
GE, Ee, eS re 2.100, 6.73, 9.13, 9.17, 9.n18, 9.nn26—27, 16.n60
Aectra Refining and Manufacturing Inc v Exmare NV, The New Vanguard (1994] 1 WLR 1634,
1648-50 (England and Wales Court of Appeal) 0.0.0... 00. cece eect eteens 10.055
Agip SpA v Navigazione Alta Italia SPA (the ‘Nai Genova’
and ‘Nai Superba’) (1984) 1 Lloyd’s Rep
BF Cmaland ated Wales Court of Apical isis epi. so :nisyeis niche iden diel deacons « 12.8
AJU
v AJT [2011] 4 SLR 739 (Singapore Court of Appeal) ................. 2.107, 2.110, 2.244
EERIE TSOO og6 dn.c thsi JRE Sais eas a rine & hed CSR Sen age eae > Big 2.100
Allen v WestPoint-Pepperell Inc 945 F 2d 40 (2d Cir 1991) (United States) ...........00. 005, 12.n8
Aloe Vera ofAmerica Inc v Asianic Food (S) Pte Ltd 2006] 3 SLR(R) 174
CBO opp ela SISTA AK ahd CHG aD re reedst eek eden) 2.114, 10.15
Amco Asia Corp et al v The Republic ofIndonesia (Decision on Annulment, 16 May 1986,
ED REE ean ntl t Eas Sh Gage d Peeks 3 need 12.79
American Cyanamid v Ethicon Ltd (1975) 1 AC 396 (UK House of Lords)............ 13.75, 13.69
American International Group Inc et al vX Company HCCT 60/2015 (Hong Kong High Court
ee Renae DONG) 6 506d 3'55 ines cies 2 ke > oS eee Leeks 12.77,12.79
AMZ v AXX [2016] 1 SLR 549 (Singapore High Court) .......
0... cece eee ee eee 2.n194, 2.n225
Ansung Housing Co Ltd v People’s Republic ofChina (ICSID case No. ARB/14/25, Award,
PA Peek swan 4 50g RAGS fa LAs Sie TAA DR 28S bs } ST VADS a RD EP 11.35
Anwar Siraj and another v Ting Kang Chung and another [2003] 2 SLR(R) 287 (Singapore High
EE eh ale dick oh bog gh soir ele br pens beep Oe AD 8.103-8.104, 8.780, 8.n105
AQU v AQV [2015] SGHC 26 (Singapore High Court) ...... 06sec eee cece eee eee nee 9.n13
AQZ
vARA [20015] SGHC 49, [2015] 2 SLR 972 (Singapore High Court) .........+5. 1.18, 2.82,
5.05-5.06, 5.135, 6.25, 6.38-6.42, 8.11, 8.n17
ReAn Arbitration Between Hainan Machinery Import and Export Corp and Donald & McArthy Pte
Ltd [1995] 3 SLR(R) 354 (The Singapore High Court) .........0.:00eeeeeeee 18.06, 18.211
Arenson v Casson Beckman Rutley Co (1977) 1 AC 405 (HL) (UK House of Lords)....... 16.03, 16.3
ASG v ASH [2016] SGHC 130 (Singapore High Court)......... 00 cece cece eens 14.n75, 15.n78
Asranovia Ltd & others v Cruz City 1 Mauritius Holdings 2012] EWHC 3702 (Comm) (England
onal Wales High Court) is ii. e666 eres ten rned unl 94% eonely ning Ons 12.n91, 12.n93
Associated Electric and Gas Insurance Services Ltd v European Reinsurance Company ofZurich
(2003) 1 WLR 1041 (PC), 0.05 bce svete hd isc cnmews ere ewnreris 16.32, 16.n35, 16.n39
Astro Nusantra International BV v PT Ayunda Prima Mitra [2012] SGHC 212, [2013] 1 SLR
pore
636 (SingaHigh Court). ......+sss0seeeeeeees 1.n47, 2.29, 2.29-2.32, 2.n255, 2.257
Astro Nusantra International BV v PT Ayunda Prima Mitra (2016] SGHC 34 (Singapore
High Court)... . 06. ceeceeee nese reser neers seen e anne tense seen tne ne nn gees 13.83
AT@T Technologies Inc v Communications Workers 475 US 643 (1986)... 06-0 + esses. 10.12, 10.n/2
AYK and another vAYM [2015] SGHC 329 (Singapore High Court)..........00e0ee seer es 13.79
 Table of Cases
eee

Bank Mellat v Helliniki Techniki SA [1983] 3 All ER 428 (England and Wales
rac
cen evgns
Court of Appeal)... .ccass teem ass tcc ns
$pges 4s ips Sie seeeenne 9.n57
Bates & Son Ltd v Wyndhams (Lingerie) Ltd {1981} 1 All ER 1077 (England and Wales
Court of Appeal) isos asic vinleeaadhin assets ancien aegease te Cheeses se uw eee reaees 12.12
BBWv BBX and others [2016] SGHC 190 (Singapore High Court). . 1... 0660s eee ee eens 16.17
BCBC Singapore Pte Ltd and another v PT Bayan Resources TBK and another [2016] 4SLR 1
(Singapore International Comments Comet) 253.553 SPOR OTOP PAG cee teeee 12.n75
BCY v BCZ [2016] SGHC 249 (Singapore High Court)......... 10.19, 12.67-12.68, 12.71-12.72
Beijing Jianlong Heavy Industry Group v Golden Ocean Group Ltd (2013) EWHC 1063 (Comm)
(England and Wales High Court) ........esse cree eee ree eneccesereneees 10.n2]
eeeeee
Beijing Sinozonto Mining Investment Co Ltd v Goldenray Consortium (Singapore) Pte Ltd{2014) 1
SLR'814 (Singapore Migr Court) 208 sic icticsas ese aes eta wseres 2.102, 2.109, 2.n71
Bharat Aluminum Co (BALCO) v Kaiser Aluminum Technical Services Inc (2012), Civil Appeal
No 7019 of 2005 (Indian Supreme Coust): 53 of ic5 occ sie pec sap speed asada eave ees 1.n6
Black & Veatch Singapore Pte Ltd v Jurong Engineering Ltd (2004) 4 SLR(R) 19 (Singapore Court
of Appeal) on s1ess pores os gic Sed actans Shea ine oe eee eee SE eee 3.22, 5.n1
Bayo’ Pollara O Morris (1950\ VRB 628. es nt chaste tee bee eee een tere ee 12.14
Bovis Lend Lease Pte Ltd v Jay-Tech Marine & Projects Pte Ltd and Another Application {2005}|
SGHE OP Cingipore'Mign' Court) et fers sb pedscasedandbes 17.01, 17.10-17.11, 17.13
Brandes Investment Partners LP v. The Bolivarian Republic of
Venezuela (ICSID Case No. ARB/
08/5, Award, 2 Auoust 201)): <5 5352 5.50 72. Pee e eee Tee eee eres 11.22, 11.27, 11.34
Brazis and others v Rosati and others (2014] VSC 385 (Supreme Court of Victoria)........... 10.”35
Bremer Handelsgesellschaft mbH v Westzucker GmbH (No 2) [1981] 2 Lloyd’s Rep 130 ......... 14.24

Campbells Cash and Carry Pty Ltd v Fostif

PtyLtd [2006] HCA 41........
0.00. eeee eee eee 1.18
Car & Cars Pte Ltd v Volkwagen AG [2010] 1 SLR 625 (Singapore High Court)........... 3.22, 5.04
Cassa di Risparmio di Parma e Piacenza SpA v Rals International Pte Ltd{2016) 1 SLR79....... 1.26
Cemex Asia Holdings Ltd v Indonesia (ICSID Case No ARB/04/3, Proceedings withdrawn,
LO: May. 200874. V0.9 5 AIP EMH NE, BO RBIS 2 SOSA 1S eRe? OP) Ob Se BE 1.85
Chiam Heng Hsien v Chiam Heng Chow [2014] SGHC 119 (Singapore High Court)........... 5.03
Ching Mun Fong v Standard Chartered Bank [2012] 4SLR 185... 0... 6c ccc eee eee 12.023
Chrissy? EickEQt 848) BCL 1565. 54.4 FRE Ae SE OTS 5.138
Chuan Hong Petrol Station Pte Ltd v Shell Singapore (Pte) Ltd [1992] 2 SLR729 (Singapore
Comresh Appeals s 4154 13.682 64548 cae SPP A ERIN i ee 13."69
Chwee Kin Keong and others v Digilandmall.com Pte Ltd(2005] 1 SLR(R) 5021..........005. 2.n14
Coal and Oil LLC v GHCL Ltd [2015] SGHC 65
(Spapore Filer COUR) BEE ET Sy RTP I od PEO 2.112, 2.n192, 2.n247
Coderre v Coderre [2008] QCCA 888 (Canadian Court of AQDER) <.22e a ccetedisatcesta 12.”107
Cofely Ltd v Anthony Bingham and Knowles Ltd [2016] EWHC 240 (Comm) ......... 8.84, 8.n111
Compania De Navegacién Palomar v Ernest Ferdinand Perez De La Sala (2017) SGHC
PAGE GNIS AT TEs TEN vec ee ces hnn dead awa sa anebddegekeseeass 9.122
CONGC Ltd v Western GECO International Ltd (2014) 9 SCC 263..... 0. oc ccc eee 1.27
Coop International Pte Ltd v Ebel SA [1998] 1 SLR(R) 615 (Singapore i AS ea 2.n20
Cooperatieve Centrale Raiffeisen-Boerenleenbank BA (t/a Rabobank International), Singapore
Branch v Motorola Electronics Pte Ltd (2011) 2 SLR 63 (Singapore Court of Appeal). ...... 10.46
Gomer Y Taylor (EOD) St GA D8 7 RN Pr Be PR 12.33
Creative Elegance (M) Sdn Bhd v Phua Kim Seng and another {1999 SGCA 4 (Singapore Court
OF Ap PE RNs VETS FETT Ve PN iE PIT 12.30, 12.36, 12.42
Crowther and another v Rayment and another (2015] EWHC 427 (Ch) ..... cece cece ee ee 8.37
CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK [2011] 4 SLR 305 (Singapore
a ae eee eT errr ere ee PRUNG 9.n15

Da Vinci Collection Pte Ltd v Richemont International SA {2006] 3 SLR(R) 560 (Singapore Court
CEQ PON: Ah: 55 4 550250502 000ks pea vebew ue enye Reet eee 13.69
 lable of Cases

Denmark Skibstekniske Konsulenter A/S I Likvidation v Ultrapolis 3000 Investments Lid (2010) 3
SE Gg EET CE TN, Ae ee ne, BY
Department ofEconomies, Policy and Development ofthe City ofMoscow v Bankers Trust Co (2004)
3 WLR 533 (England and Wales Court of Appeal) ... 2... 2... ccc ccc eee ee eee 16.n44
Dermajaya Properties Sdn Bhd v Premium Properties Sdn Bhd (2002) 1 SLR(R) 492 (Singapore

Deutsche Bank AG v Democratic Socialist Republic of Sri Lanka (ICSID Case No ARB/09/02,
ee iN au cassigig'b'eu waves olais 1.43
Dongwoo Mann & Hummel Co Ltd v Mann & Hummel GmbH {2008} 3 SLR (R) 871 (Singapore
NN TAD ial i ak wculh a8. seed & co oo 2.n209, 2.n229, 9.n18

Eagle Star Insurance Co Ltd v Yuval Insurance Co Ltd (1978) \ Lloyd’s Rep 357... ........04.. 1.25
Econ Piling Pte Ltd v Shanghai Tunnel Engineering Co Ltd {2011} 1 SLR 246
en Ca i 8s ides 6 6 oe as Wei wma 14.43, 14.051, 18.17, 18.28
Eltraco International Pte Ltd v CGH Development Pte Ltd {2000} SGHC 114
ema Cone + ih tes) bd ca tetdc evaetinlets ak seein iin oe os 13.76
Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch) ........0.000ceeeeeeeees 8.n69
Emirates Trading Agency LLC v Prime Mineral Exports Pte Ltd(2015] 1 WLR 1145 (England and
Tne Oe IE 855 05 i 5 edd GS cgBPs es wclew asia anmeds OKs bd bee 10.038
Emmis International Holding BV, Emmis Radio Operating BV, and MEM Magyar Electronic Media
Kereskendelmi Es Szolgdltaté KFT v Hungary (ICSID Case No ARB/12/2, Award,
Toooavon navvsine txSlate Ramee ll.n13
Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC)
(Eaahana andl Wales Court of Appeal) ic. i sisisisiccc esis serene abs 6 ba a we beennwreieaions 9.n108
Engineering Construction Pte Ltd v Sanchoon Builders Pte Ltd(2011] 1 SLR681............. 10.n51
Essar Oilfields Services Ltd v Norscot Rig Management Put Ltd [2016] EWHC 2361 (Comm)
(England and Wales High Court) «0.6 6:5 nec cs oe ce eine lee ee 15.68, 15.%102, 16.n60
Esso Australia Resources Ltd v Plowman [1995] 183 CLR 10 (High Court of Australia) ......... 16.15
Etablissements Levy (Georges et Paul) v Adderley Navigation Co Panama SA, The Olympic Pride
ND RGD be, Sanath b\n athbeh PKG FERRE Ts bate ee soit ag 12.14
EuroGas Inc and Belmont Resources Inc v Slovak Republic, CSTD Case No ARB/14/14, Transcript
of the First Session and Hearing on Provisional Measures dated 17 March 2015.......... 3.n28

Fasi v Speciality Laboratories Asia Pte Ltd (No 1) [1999] 1 SLR(R) 1138
Te Teer Terre ee eer eee. cee eee eee eee TT 2.n127
First Interim Award in Case 11413 (2010) 21 ICC Bulletin 34 18.22, ........ 0c ccc eee eee 18.241
(1) First Norwegian National and (2) Second Norwegian National v (1) Foreign Company and (2)
Rete Nastenal (2012) 1 SKA ATS. « 65:6 0 ceevdeneeivien nt CEN vain NENTS wcenle dian 4 6.22
First Options ofChicago Inc v Kaplan 514 US 938 (1995)... cscs cev ener e eee eee eens 10.nJ2
FirstLink Investments Corp Ltd v GT Payment Pte Ltd et al(2014] SGHCR 12
(Slagapone High Cott) i.e ect ce rece ener an omnes ene y as memes 2.65, 12.69
Five Ocean Corp v Cingler Ship Pte Ltd {2016} 1 SLR 1159 (Singapore High Court)... .. 12.20, 13.80
Frantonios Marine Services Pte Ltd v Kay Swee Tuan [2008] 4 SLR224....... 0. cece eeeeeeee 12.36
Freely
Pte Ltd v Ong Kaili
and others [2010] 2SLR1065 ....... cece e cere ener e cence ees 12.75
French Firm v (1) Indian Company and (2) (16) Shareholders ofIndian Company [2012] 1 SAA
RABIAC Tetlnreeh) is:5:visa io oe dkv9 WO 2 On WI whe b cmon Vem M ee 15.n100
Frith v Lord Donegal [1834] 2 Dow PR527..... sce e cece nee n eee enn eee teen nees 5.038
Fulham Football Club (1987) Ltd v Richards and another (2012) Ch 333 (England and Wales
Court ofAppeal)... 0.00 cece cence e et ee re eene sree eversenreseeneeeeennens 10.236

Inc v Wang Wensheng (tradingasHawkeye Technologies) [2011] SGHC 239 (Singapore pe

Gatekeeper
eNO Eee ee eee eee) ee ee eee eee eer ee en ,
Peorate hl and Industry, \nterlocutory award in case no 117, 29 November
534 (1997)...
1996, 15(3) ASA Bulletin cece cece reenter eee eee eee eennnees 5.12
Geneva Chamber ofCommerce and Industry, Intetlocutory award of 30 June 1987, 15(1) ASA
Bullet occevinsinvcscccvavterereversetvrreyeervewnevvevenseresgues $12
IZ (ADI in

xvii
 Table of Cases

Getreide-Import-Gesellschaft mbH v Contimar SA Compania Industrial Comercial yMaritima SA

[1953] 1 WLR793 (England and Wales Court of Appeal)... ........ 000 eee eeeeeeues 10.22
GHL Pte Ltd v Unitrack Building Construction Pte Ltd (1999) 4 SLR 604 (Singapore
Courtof Appeal). ....0i2 +2404 0600s den Sees eile eas ORL a, ee 13.76
Gilbert Street Developers LLC v LA Quinta Homes LLC 174 Cal App 4th 1185, 94 Cal Rptr 3d
918 (2009) (California Court'of Appealp US). ciao sn ces eeeen Oe ae 3.22
Global Trading Resource Corp and Globex International Inc v Ukraine (ICSID Case No ARB/ 09/
} b, Award, 1 December 201O) xcs baie ces sé he 11.35, 11.13, 11.n23, 11.n34 11.n51
Good Property Land Development Pte Ltd (in liquidation) v Société-Générale [1996] 1 SLR(R) 884 10.n61
Government ofthe Lao Peoples Democratic Republic v Sanum Investments Ltd [2015] SGHC 15
(Singapore ‘High Coure) tis, 4 sd GEIGER ew ee pO Cae a 2.99
Government ofthe Republic ofPhilippines v Phillipine International Air Terminals Co [2007] 1
SLR(R):278 o-... shecc RET a ed en, Beet heat Aall 10.20
Great Peace Shipping Ltd v Tsavlaris Salvage (International) Ltd [2003] QB 679 (England and
Wales Coure of Appeal)i 0.2.4 QO eee eee 2 ee 12.8
Guan Chong Cocoa Manufacturer Sdn Bhd v Pratiwi Shipping SA [2003] 1 SLR(R)
157:Singapore- high Cours)... <.18.0). 00. JY On ae a ree 13.78

Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Co Ltd (2013) EWHC
4071 (Comm) (England and Wales High Court)..........00..cccceceeuees 12.n91, 12.n93
Hancock Prospecting
PtyLtd v Hancock [2013] WASC 290 (Supreme Court
Gb Westerti Atiswalia)rs: onan XWiki URS Garren Cacue et Vee: «epee 3.n22
Re Harish Salve and another matter [2017] SGHC 28 (Singapore High Court)............... 1.nI12
Hayate Investment Co Ltd v ManagementPlus (Singapore) Pte Ltd {2012] SGHCR 3 (Singapore
Flighs Coure)s: <.ciccd PRAAGA BIRO rh 8h CAR Seow. 4 Ws CL ereey 10.46, 10.”62
Heathy Wine neh) 2A S OIE) el aS ewe
ad as Ao 5.38
Himpurna California Energy Ltd v Republic ofIndonesia, Interim Award and Final Award, 26
September 1999 and 16 October 1999, 15 Mealey’s Intl Arb Rep A-1 (2000) ..... 8.119, 8.2117
HIKL Group Ltd v Rizg International Holdings Pte Ltd {2013] SGHCR 5 (Singapore
Plight Conise). ne aed tation vated 3a 24TA «44 2 beeen Eber Ee 5.08, 5.10
Ho Wing On Christopher v ECRC Land Pre Ltd{2006] 4 SLR(R) 817
(Singapore Codie ob Appédly. bownieauanari’ nrescte O ww anivedd bos anieetad 6a) 12.31
Honeywell International Middle East Ltd v Meydan Group LLC [2014] EWHC 1344 (England
an Wales righ Court), 001) miele LAE UL He a eh erwetal eau 5.3, 5.n45
POSE NGL WOE 19635 0 AG BK erwlill, ALAA QEGRAARN | See
12.n18
ICC Cah NeEROFpEEDO ITO. i eeniny seer aes Alves eel erie 13.05
ICDR Partial Award of 10 October 2002 Watipublished) « iyv« So i4o4
1 Leah eee eee 13.5
ICT Pry Ltd v Sea Containers Ltd [2002] NSWSC 77... . 0. cece cc ce cc ccccceuucccesec
cn. 17.05
Insigma Technology Co Ltd v Alstom Technology Ltd (2009) 3 SLR(R) 936
(Singapore
TUTE OENOOING 5.14 Ninn dnwsA Anda ann annaandaneaaien 1.15-1.16, 1.%36, 5.09,
17.22
International Research Corp ple v Lufthansa Systems Asia Pacific Pte Ltd 2013]
1 SLR(R)
973 (Singapore Page Couttes+ bis i 6A ved conbenka
aad 10.30-10.31, 10.39, 10.24
International Research Corp ple v Lufthansa Systems Asia Pacific Pte
Ltd(2014] 1 SLR
130 (Singapore Court of Appeal) ..... ..
0.0.0 cece ce ceceeceee 2.165, 10.30-10.31, 14.02
Investors Compensation Scheme Ltd v West Bromwich Building Society
[1998] 1 WLR896 ......., 5.13
JDC Corp v Lightweight Concrete PteLid {1999} 1 SLR(R) 96 (Singapore Court of Appeal) . . . .. 2.63,
Jiangsu Overseas Group Co Ltd v Concord Energy Pte Ltd and another 2.n127
matter [2016] SGHC 153
DONE COUN) rsh (ia L6pune SVU E APR evie boxe
Sire Ee Mladen 2.82, 2.99
v
blasiowant (2011) KSC 40, iysviivas vovevds es aw cawveeWa
John Forster Emmott v Michael Wilson & Partners Ltd [2008] ue 8.54, 8.n65, 8.n86 -
2 All ER (Comm) 193 (England
and Wales Court of Appeal) v0... ivis ivveeveuviedeel
vawvaatvnyy 16.14, 16.18, 16.02]
John Holland Pty Ltd v Toyo Engineering Corp (Japan) [2001]
2 SLR 262
paigapone Fh Cota sts ta viv corn
IVE AggoIndustries Ltdv Agitrade International PreLtd(20\6trannies ventmenente 2.100, 2.220
] SGHC 126(SingaHig
pohre
Cour) ....... 9.n13
xviii
 Table of Cases

Kempinski Hotels SA v PT Prima International Development (2011) 4 SLR 633 (Singapore

ee ee eh 8 bed oS. hi Due dP cos abacks, 9.41-9.42, 9.n30
es dabnadawhica dacs oGaccecccececs 1.25
Klockner Industrie-Anlagen GmbH v Republic ofCameroon (Decision on Annulment,
ne OS Sit Seeieee. |)Secale caw 4 a os'e'ew a dou 12.115
Koh Bros Building and Civil Engineering Contractor Pte Ltd v Scotts Development (Saraca) Pte Ltd
[2002] 2 SLR(R) 1063 (Singapore High Court) .....
000.....
cece eee eeeeeee 8.n80, 9.n15
Kok Lee Kuen v Choon Fook Realty Pte Lid (1996) 3 SLR(R) 182 (Singapore Court of Appeal)...
...12.n14
Kwan lm Tong Chinese Temple v Fong Choon Hung Construction Pte Ltd {1998] 1 SLR(R)
nn US OU ROR hi i6 tasee ded sutras kick 2 sues atiewesds's. 2.63

Re Landau, Toby Thomas QC [2016] SGHC 258 (Singapore High Court). ........0444. 1.nJ12, 2.104,
2.107, 2.111, 2.71, 2.n209, 2.n236, 2.n245
Larsen Oil and Gas Pte Ltd v Petroprod Ltd (in official liquidation in the Cayman Islands and in
compulsory liquidation in Singapore) {2011] 3 SLR 414 (Singapore
Ct Anais 2B wid Back i viel Ve 63 EE pede 2 bl oe: 10.22-—10.23, 10.25
LC v ALF [2010] SGHC 231 (Singapore High Court) ........ cece cece eee eee e eee 2.n136
Lenmorniiproekt OAO v Arne Larsson & Partner Leasing Aktiebolg (O 13-09, 16 April 2010)
Camis Siete Comin ei eh 2053 Saccawods eratleiians vawoesiey a vey oe 5.n36
Loblaw Companies Ltd v Origin & Co Ltd & another 2017} SGHC 59 (Singapore High Court). .. 2.83
Lum Chang Building Contractors Pte Ltd v Anderson Land Pte Ltd(2000] 1 SLR(R)
Rep antes seated Anil os tf cas. dans Rai dient & oF 2.03
Luzon Hydro Corp v Baybay and Transfield Philippines Inc, CA-GR SP No 94318 (Philippines,
Manila Court of Appeals), 29 November 2006 ........00c cence ccdeceneneeunewe 15.n84
Luzon Hydro Corp v Transfield Philippines Inc [2004] 4 SLR(R) 705 (Singapore
NEES 0050 Relea ceed ict Rin eGR ahs. LSE 9.n113
LW
Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another (2013) 1 SLR
125 (Singapore Court of Appeal) 12)i.0)2.3 sets tenis ere DES he 2.98, 2.n198, 9.12, 14.66

Malaysian Company v Indonesian Company (CSID Case No ARB/97/4, Award,

EES DS eeeS er eT 15.07, 15.n6
Maldives Airports Co Ltd and another v GMR Malé International Airport Pte Ltd(2013] 2 SLR
449 (Singapore Court of Appeal) ............00
0000. 2.n141, 10.18, 13.76, 13.61, 13.n86
Malini Ventura v Knight Capital Pte Ltd and others (2015) SGHC 225
Cages High Coats) od «ties. wnceaglneiies 28 sei ove ain oR KOK 2.65, 2.n134
Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 AIlLER 213..........-. 13.78
Mayv Plate (1900) 1 Ch:616 (England) ...65 cccniew es cra cniied tessa e ows Cea Cas 12.n12
Mitsubishi Motors Corp v Solder Chrysler-Plymouth Inc (1985) 473 US 614 (Supreme Court of
a SN) 58 5 isd iea's gv dc akeece dances cole fw) wore) . 12.074
Mitsui Engineering & Shipbuilding Co Ltd v Easton Grahan Rush and another (2004) 2 SLR(R)
14 (Singapore High Court)... 0.66.0 c cers esc e sent bneeneenenrenneens 2.n146, 8.n104
MOL Hungarian Oil and Gas Co PLC v Republic ofCroatia (ICSID Case No ARB/13/32,
pending at time of publication). ....... 0666s cece eee eee e eee nen eeees 11.723, 11.034
Mount Eastern Holding Resources Co Ltd v H&C S Holdings Pte Ltd and another matter [2016]
SGHC 1 (Singapore High Court).......0 secs eee e eee renner eee nee eneeneees 14.n32
Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd Sti v Turkmenistan (ICSID Case No ARB/
12/6, Procedural Order No 3, 12 June 2015)... 0. cece eee cece eee e ee eees 3.n28, 19.n29
Constructions Pty Ltd v Sintal Enterprise Pte Ltd [2005] 2 SLR(R) 530 (Singapore
Court of Appeal)... 66 cecceeetceee sneer cece enerneeeseneeeareteneeaenenees 2.0127

National Insurance and Guarantee Corp Ltd v Young Legal Services Ltd 2005] 2 Lloyd’s Rep
46 (England and Wales High Court)... ..-0:0 cree eee nen
setes0s eneneneens 12.23
ese
NCC International AB v Alliance Concrete Singapore Pte Ltd (2008) 2 SLR(R) 565 (Singapore
Cou Appeal). .c.. sss cee cece etree cence nee en ee ne een e rene renee nnee ees 13.72
ofrt
NCC International AB v Land Eeeeney pyia ee[2009] 1 SLR(R) 985 (Singapore
High Court)... ...02cseecee een
seers etenene eee
nennnn ee
eannn eres
eeeene eaes 8.10
 Table of Cases
ee

New Age Alzarooni 2 Ltd and another v Range Energy Natural Resources Inc (2014) EWHC
4358 (Comm) (England and Wales High Court)... 26.660 s cece eee tere e eee enn 16.60

Oberlandesgericht Oldenburg [2006] Schieds VZ 223 6... 6. sees eect eee eee eens 5.12
Occidental Petroleum Corp and Occidental Exploration and Production Co v Republic ofEcuador
(ICSID Case No ARB/06/11, Award, 5 October 2012)... 0.0.0: e cece eee eens 15.07, 15."5
Oil & Natural Gas Corp Ltd v SAW Pipes Ltd [2003] 5 SCC 705 (Supreme Court of India) ... . 2.240
Oleovest Pte Ltd v Republic ofIndonesia (ICSID Case No ARB/16/26, pending at time
of publication) -s-4/008 9S OTs BPA GS a oeGES SUNS gee 1.985
Otech Pakistan Put Ltd v Clough Engineering Ltd & another (2007) 1 SLR(R) 989 (Singapore
Carr afAppead oii) 6353.0 eevee pe Es 90d eke ae ee eee nS AOE S ee eee 1.n8
OWS Logistics Pte Ltd v Soon Meng Construction Pte Ltd (1992) 2 SLR 376... 6... ee eee eens 10.48

Pacific Rim Investments Pte Ltd v Lam Seng Tiong [1995] 2 SLR(R) 643 «0...
cee ee eens 10.47
Patuha Power Ltd (Bermuda) v Republic ofIndonesia, Interim Award and Final Award,
26 September 1999 and 16 October 1999, 15 Mealey’s Intl Arb Rep B-1 (2000) . . 8.119, 8.nJ17
Paul Smith Ltd v H & S International Holding Inc (1991) 2 Lloyd’s Rep 127. . 1.0...
00s cece es 12.51
Pearson v Naydler [1977] 3 All ER 531 (England and Wales High Court) 536 .... 12.31, 12.33, 12.35
Peh Teck Quee v Bayerische Landesbank Girozentrale [1999] 3 SLR(R) 842 (Singapore Court
of Appeal) singh’ Siegrsga CN ERTS LU ed Se PT Ue 12.57
Philip Morris Asia Ltd v Commonwealth ofAustralia (PCA Case No 2012-12, Procedural Order
No 3 Regarding the Place of Arbitration, 26 October 2012) «1... 6.0.00eee ee eens 1.44-1.45
PNG Sustainable Development Program Ltd v Independent State ofPapua New Guinea (1CSID
Gase No. ARB/13/33, Awards May 5; 2015) vai Wale CEN SEIS OE TA 11.23, 11.n34
Ponachee U]B Westerhout and The East India Company (1889) IT SLJ 82... 0... ee eee 2.02
Popack v Lipszyc 2015 ONSC 3460 (Ontario Superior Court of Justice)... 6... ee eee 2.173
Parter'o Magill {2002) NC O57 FIR FO SURES RSP EPL ORE TOWER 8.80
Premium Nafta Products Ltd v Fili Shipping Co Ltd (2007) UKHL 40
(UiRsbicisech onda) tones i 5 See Fs be ES eae 10.20, 10.22—10.23
Prometheus Marine Pte Ltd v King, Ann Rita [2017] SGHC 36
(Sti pore Tigh Qourt)...a0i0d CH Ca dewed ade Bde ces 0 ADO 2.n222, 2.n238
PTAsuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597 (Singapore
Coulter Appeal kG WA Mia eas ser ewewwents 2.86, 2.108-2.109, 2.112, 2.971, 2.n120,
2.n177, 2.n240, 14.03, 14.m2
PTBangun Karya Pratama Lestari v NineAM Ltd (Judgment No 601 K/Pdt/2015 dated
31 Auigust 2015, Indonesian Supreme Court) iii eee 0s 88 6 PONY WNT 1.54
PT Central Investindo v Franciscus Wongso and others and another matter [2014] 4SLR978...... 2.100
PT First Media TBK vAstro Nusantara International BV [2013] SCGA 57, [2014] 1 SLR
O72 Singapore Convo Appeal), ova verses cccevcsdenenreceenedeaeen 1.82, 2.03, 2.22,
2.29-2.33, 2.89, 7.26, 7.37, 7.n20, 9.15, 9.057,
10.31, 10.720, 10.41, 16.21, 16.n40
PT Garuda Indonesia v Birgen Air [2002] 1 SLR(R) 401 (Singapore Court of Appeal) ..... 9.81, 9.56
PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 (Singapore Court
ob Appeal... ester vie dence wwe hea 2.n232, 9.42—9.43, 9.55, 12.48, 12.n65
PTPukuafu Indah v NewmonLtd
t [2012] 4 SLR 1157 (Singapore High Court) ..... 13.13, 13.1, 13.026
PT Tugu Pratama Indonesia v Magma Nusantara Ltd (2003) 4 SLR(R) 257 2... 6... eee 10.nJ0
Puma v Luis Jacinto Ramallo Garcia (arbitrator) and Miguel Temboury Redondo (arbitrator),
Casacién E Infraccién Procesal num 3252/2014/decision of 15 February-2017 . i... cece’ 14.31
Re Quiksilver Glorious Sun JV Ltd [2014] 4 HKLRD 759 (Hong Kong High Court) ......... 10.036
R v Liverpool City Justices, ex Topping [1983] 1 WLR 119 (England and Wales High Court) ..... 8.80
Rv Momodou [2005] 2 All ER 571 (England and Wales Court of Appeal)... .......0000005 9.n107

REREAREEA RREEE RC EE LE CAEL cee LL 11.26, 11.35, 11.913, 11.923

RSM Production CorpvThe World Bank Grouet
pal, DC District Court Case No 00783,
Plaintiff's Verified Complaint, 29 May 2013 (United States)
xx
 lable of ‘Cases

The Russian Federation v Veteran Petroleum Ltd, Yukos Universal Ltd and Hulley Enterprises Ltd,
C/09/477160/HA ZA 15-1, 15—2 and 15-112, Decision of the Hague District Court,
EES EE ee er ore. er 8.n36
SA J&P Avax SA & P v Société Tecnimon SPA (2009) Revue de |‘Arbitrage 186 (French
EE oe ee ne ee ee ee ee 8.n89
Sabah Shipyard (Pakistan) Ltd v Government ofthe Islamic Republic ofPakistan (2004)
SSLECR) 194 Gingancer High Court) 0... eo. so ecic cv ceabancckadaancseae 10.22, 15.43
Sanum Investments Ltd v Government ofthe Lao Peoples Democratic Republic (2016) 5 SLR
nen Neen els 05 5 oii 22 63 Ci eke) Lowel awees b van d v.30606 2.82, 2.99
SEF Construction Pte Ltd v Skoy Connected Pte Ltd (2010) 1 SLR733
eer TT re ee ee 2.100, 14.24-14.25
Sembawang Engineering Pte Ltd v Priser Asia Engineering Pte Ltd [1992] 2 SLR(R)
BG Gtmenpore Courtof Anmead) agi asic cca cccucencnecacavess 12.31, 12.35, 12.035
Sembawang Engineers and Constructors Pte Ltd v Covec (Singapore) Pte Ltd (2008) SGHC
aan pac ee Cia). i sigs) big: ee EE S| ieres ease) Wi. 10.251, 10.n56
Shri Lal Mahal Ltd v Progetto Grano Spa (Civil Appeal No 5085 of 2013, Supreme
REID. i oc co's witski c'sa «b> «RS. AE LLCS eS a 2.n240
Siemens AG and BKMI Industrieanlagen GmbH v Dutco Consortium Construction Co
(Cass Civ 7 January 1992, French Cour de Cassation)...........00.00eceeeues 7.n22, 7.n29
Sierra Fishing Co and others v Farran and others [2015] EWHC 140 Comm........... 8.n84, 8.n111
Singapore Company v (1) Indonesian National and (2) Indonesian Company [2012] 1 SAA
TE NI ai acs atstan wise wich SRW de ed LE Sa LSE a 14.n78
Sino Channel Asia Ltd v Dana Shipping and Trading Pte Singapore and another [2016] EWHC
os a co ionin ASM eu s ROS Ake aeeR? cid bo. Beet 5.n31
Sociétés BEMI et Siemens v Société Dutco, 7 January 1992 (1992) Revue de l’Arbitrage 470 (French
CE ER ET ES EE Tee ee eae | 8.47, 8.n57
Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd [2007] 3 SLR(R) 86 (Singapore
COLOR AON AIA dé.) KS Ades 26 aro eww. 2.96, 2.100, 9.08-9.11, 11.752
Solvadis Commodity Chemicals GmbH v Affert Resources Pte Ltd (2013) SGHC 217 (Singapore
ghee 5 ¥i01 Kaneko coawiuas 13.78, 13.267
AAO .
Strandore Invest A/S v Soh Kim Wat [2010] SGHC 151 (Singapore High Court).............. 2.119
SulAmérica Cia Nacional de Seguros SA & others v Enesa Engenharia SA [2012] Lloyd’s
Rep 671 (England and Wales Court of Appeal) .. 0.6... 0.0 c cece eee eens 12.66, 12.68, 12.72
Surfeit Harvest v Taiwan Province ofChina (UNCITRAL—PCA, details not
8 NRG OTE 0386 iS eves Dot oes) arabe 1.785
Swift-Fortune Ltd v Magnifica Marine SA [2007] 1 SLR(R) 629 (Singapore Court of Appeal). .... 1.06
Swiss Singapore Overseas Enterprises Pte Ltd v Exim Rajathi India Put Ltd (2010) 1 SLR
$75 Gingapnet High Catran) 0681050 0008 1 IWA. He ten Ue vads 6 Lee) en TIS 2.102

Taizhou Haopu Investment Co Ltd v Wicor Holding

AG [2015] Tai Zhong Shang Zhong Shen Zi,
ee Oe Cee oP eee ee eee Pe ee see 2.n241, 5.14, 17.n11
Telenor Mobile Communications v Storm LLC 524 F Supp 2d 332 (SDNY 2007)
See Oe, See re eee ee eT err ere
ee ne! 2.n241
AliBin Kamil Al Shamsi and others {2012] EWHC
Terna Bahrain Holding Co WLL v Ali Marzook
3283 (Comm) (England and Wales High Court). ........ 6000 e cece eee nee nes 16.60
Three Rivers District Council and others v The Governor and Company ofthe Bank ofEngland
[2006] EWHC 816 (Comm) (England and Wales High Court) .............++- 15.05—15.06
Ting Kang Chung John v Teo Hee Lai Building Constructions Pte Ltd and others [2010] 2 SLR
625 (Singapore High Court)...... 600+ cece cere rere rere eee e nen n en ne seen enes 15.70
Tjong Very Sumito and others v Antig Investments Pte Ltd (2009) 4 SLR(R) 732 steno hag ate
OF Appeal)... csccvcccveveevevecerteveressscevessesencensensenees ; .14, 2.
TMM cine SA de CV v Pacific Richfield Marine Pte Ltd (2013) 4 SLR 972, [2013]
4 SLR 972 (Singapore Court OFADBER NTs csc cer nrersessveresepers 2.97, 2.100, 2.n194
TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd {2015] SGHC
186 (Singapore High ee ee ee 2.97, 2.100, 6.3, 9.07, 14.24-14.25

xxi
 Table of Cases

TMT Co Ltd v The Royal Bank ofScotland ple (trading as RBS Greenwich Futures) and others
[2017] SGHC 21 (Singapore High Court) §,o.)s5s cal eas Jat dal shi eo teeue hae eee 2.64
Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals (2015] SGCA 57,
[2016] 1 SLR 373 (Singapore Court of Appeal)...........+20000: 1.19, 2.64, 2.n120, 7.n17,
10.16, 10.28-10.29, 10.n30, 10.n37
Trans-Global Petroleum Inc v The Hashemite Kingdom ofJordan (ICSID Case No ARB/07/25,
Settlement Agreement, April 8, 2009)............ 11.22, 11.24~-11.25, 11.32, 11.13, 11.05]
Tribune Investment Trust Inc v Soosan Trading Co Ltd (2000) 2 SLR (R) 407
(Singapore Fligh Cotge)nturys..cnavue
se Reena
dicanthecd
236d. eee: 13.80
Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2014] SGHC 220, [2015] 1 SLR k
114:(Singapore High Court) 05.4.0 120005; cabs 2.93, 2.97, 2.99, 2.100, 2.n189, 6.n3,9.n18
Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd and Joseph Gartner & Co [1988]
1 SLR(R) 483. (Sifigapote High Court)? cx'as oda
eignd ebay 8.57-8.58, 8.63, 9.92

Union ofIndia v M/S Singh Builders Syndicate (2009) 4 SCC 523 (Supreme Court of India)... ... 1.36
Union ofIndia v McDonnell Douglas [1993] 2 Lloyd’s Rep 48 (England and Wales High Court)... .. 9.n70

VV v VW [2008] 2 SLR(R) 929 (Singapore High Court)...........00000euee 10.44-10.46, 15.69

Wyniors: Cae(1G09): 77g Rep SO7oxe:nuis.: an de ins beeen
eB aa ie 1.25

W Company v Dutch Co and Dutch Holding Co [2012] 1 SAA 97

(SIAC Tisbiiatal) 45. Rican bperensr ard Gc ein lees cd alee 4 6.25, 8.n15, 15.n100
WisdvM SDN BHD,[2016) EWG 422.{ Gotan) sec cosmos Oecws ddan eaudel SE 8.n84, 8.n89
Waste Management Inc v United Mexican States (ICSID Case No ARB(AF)/98/2, Dissenting
Opinion of Keith Highet, case concluded 2 June 2000)...
0.0 ccc....
ceecceseecee
.ee 19.28
Westport Insurance Corp and others v Gordian Runoff Ltd [2011] HCA 37
Berane Aa) 5c wwwidhiw dik sR nw widsield Wo x sain wre A EOIN i eee 6.n2
White Industries Australia Ltd v Republic ofIndia (Final Award, 30 November 2011) ....... 1.35, 1.43
WSG Nimbus Pte Ltd v Board ofControl for Cricket in Sri Lanka [2002] 1 SLR(R)
LOSS (Singapore High Gaur) 22/5) v9. vS eee «oh Vite amluest deemed 2.n146
Yaung Chi Oo Trading Pte Ltd v Government ofthe Union ofMyanmar (ASEAN ID Case No
ARBAOUL) 4540)) LAS de leek ween aes sani. Su exw bell aC haatee 1.785
Yee Hong Pte Ltd v Electrical Engineering Pte Ltd (2005] 3 SLR(R) 512... . ee oe ce cece e cece. 9.07
Zanotti v Interlog Finance Corp and others, Claim No BVIHCV 2009/0394 (8 February 2010)
(British Virgin Islands Commercial Court) .........0..0ccececceccccucccc
ecece. 10.35
Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd(1985] 2 EGLR14........ 2.97,
2.100, 2.225
Ziiblin International GmbH v Wuxi Woco Gen Rubber Engg Co Ltd (People’s Ct of
Wuxi,
Os gapictus bella ARE EEE ee ee 17.12, 17.n11
Zurich Chamber of Commerce, Preliminary Award of 25 November 1994, XXII
YB Comm Arb
SIS PAAG IIIT) eee tvs NGL) é dlc ws Sanenmen’s tckv an keetu
l Wace Sti
Zurich Chamber of Commerce Case No 287/95, Award of 25 March
1996, 14 ASA Bull
NON eins ne AE RAW ebnes anindaeescriniabe Sigua Oiled nae 5.11

xxii
 TABLE OF LEGISLATION

SINGAPORE Ree ee ey oe Ped ovina ee sat 9.111

Gres 437740. 2.37, 2.72, 2.n147, 11.50,
Statutes 13.15, 13.24
Arbitration Act 1953 s29
(Ret t40f 1993)... 65s... 2.03, 2.44 3 OL Be ee ee en ee 2.48
Arbitration Act 1985............ 2.03, 2.34, 2.44 DR ee tg pel ee 2.48
Arbitration Act 2001 (Act 27 of 2001, rev. s 30
py Se 2.05—2.06, 2.45—2.49, 9.n57 era te Pace srk 2.67
) SCPE hs cere 2.55 ES Sa ee eee | 12.25
ees, ee Pe. 5.22, 10.n48, 11.49, SaaS
hoa dod Oalotet xe ohh 2.49
13.12, 13.23, 14.02, 14.06 Oe ee feAD ee 12.40
Fy Pe eee ee ee 2.46 Ts ng need ECS estan 13.04
ii As 84 sR % 2.87, 5.51 £32
Le A eee 5.50 Ras tees s SEA ko vk 12.61, 12.n99
oe SOA ae 5.51 638 + .0ces GK teehee 14.26
ee ee 3:53 $35
Uo i oe ee 5.52 (2)54 . eaqam AbTE ain reniel tte .. 2.43
Neee eee . 2.48 | aa ae ee ee eS ee 14.37
- eT eee TEAS 2.6 WT aa lel Bn RS eh sn vue.» cl ade 14.39
ee ee 2.48 OvMelen svarcaists
badompent. StS ... 14.39
: So) EE e n Ree . 8.08 SSSA 3.26 aot.LesPES eterna . 2.100, 14.23
car) s39 . ‘
Weber sh Whdety tii ices cao D7AZLI7.I18 (1)Poe CMON acsSo. ofatelte $8 Mearns oie) pets iepgr ens DTh

= er ET ce ee eePee 3 <,8 17.17-17.18 GHB) artied (arate trond

ae toe
beer thetaseciics ss akZ EATS dS Bei MA)«ca cc. Gee
Pieeteseasssinadecss sank PAZ FAs sat: APART 7 a telBe wd?
Lae 2.73, 4.08, 17.17-17.18 ON oS aah: tienen
UC
eh
lS
———
Jerse cneccsccreess 47, 17.17-17.18 "S Aepaiorioee nicer cane > 2 ap
sari htleniiioneem sect: NE
}. Piswe ee He ame 100
| aaa PT eI 16.43
<i @)« PMTs 0a Pe ee EAS ESS sys es
se
)(b) eee peneetes as diedisbe one 4). LES troegeraT ane nee
| ee bee Bectceteaccee woogee ai
 Table ofLegislation
a eee

s 49 pth Wore ares 2 5.22, 10.39, 11.49, 13.12,

CD) POR aS ict 5 ee eae 2.91 13.23, 13.54, 13.”J5,
ros box eis dE RS 2.n96, 6.33, 14.47 13.n25, 14.02, 14.06
Ais 5 MAP aaa eee 2.91 S2A; « wvaicw candiwds beleweneneatn ane 2.n87
(Oe ood fk See ad eee 2.91 (1)... een dX Cow Cee 5.51
(() I ere re Per ee kor 2.91 os el Lice a Aes 2.43, 5.50
s 50 (5): 20: 4 1 REARS Fee 5.51
(2). Sick BLA RS Re eee 2.91 ey eck Bei ac kigasiccwevevewewn 5.53
BSG 25 Zo 62s ee a a ee ee 2.68, 16.16 (D)iijndua ME ow vga
rae walt 5.52
LP rei Hh 16.16 BAe: dle g Re odio oS ee ROD cai sini 9.08
(2) sta Pe es Soke 2.68 (Det ce 2.07, 2.21, 2.28—2.29, 2.31, 2.33,
C58. 20 cS0R eR ee eee 212 2.64, 2.84, 2.100, 2.7255, 5.19, 6.33, 8.59,
s59 8.61, 8.n19, 8.n108, 8.n114, 9.50, 9.n3,
CL) eials eee tenon ae ae 16.06 10.14, 10.19, 10.745, 11.252, 12.61, 12.64,
OQ) et OH ee Se ee Pe 16.n8 12.80, 12.77, 14.23, 14.46—-14.48, 14.56,
Cael s SA A As ee as 16.06 14.70, 14.n48, 16.04, 16.43
BAPAC asa nk REARS bass 4,23, 4.24 s5
s 63 h eepene
ee eee ee 2.10, 2.28, 2.45, 2.n12
Qi re Ae Eas Pee OF FS 16.n16 O) ot sses Sone vesees beeen 9.n83
ira ati Pee AA wh NaS 16.n16 (a). 5 oth sie pceedeokeiee
nen 2.09
Arbitration (Foreign Awards) Act POND ounce 5 She ceeeee asec 2.09
1986 (No24 of 1986)... 006 usin 2.n256 (OGD... ovens cheese eae eee 2.09
Arbitration (International Investment (Sa Cer ie 2.09
Disputes) Act 1968 (Cap 11, 2012 BOE SG ESS he bob ReCESOE: Se 2.48
Rev Ea)r.b eats gs 2:06,2:51, 25123 OD cs arisesal feocnkic iinoh phew knee 2.n124
RR Fs Dae ee ae Bae 6 Fate RR ee RY 2.n112 Steed lass podabd oes oesneeael 2.55
Arbitration Ordinance 1809... .2.02—2.03, 2.44 (Diccusuecenedeobekeveesbaswe 2.66
Arbitration Ordinance 1890........ 2.03, 2.44 (2). 2) Sie 2.73, 2.n150, 4.07, 17.17-17.18
Arbitration Ordinance 1953........ 2.03, 2.44 (BeBe Acs 2.73, 4.n7, 17.17-17.18
Civil Law (Amendment) Act 2017 Se RD 5 See ee 2.42, 8.n8, 8.n10
62 (new SA)" i iss see thiacsetaaeS 19.22 3) ys ae PS eT 2.42
e2ihew SD): sta Feeres 1.06, 19.22 Papers eS oct ou thn B80 8.34
Companies Act (Cap 50, 2006 Rev Ed) s10
BLIOOD)) . 64425 ee OP Te 10.734 (10's 6a ae 2.83, 10.18, 10.40
ol TEER Ce SEER EERE EOL a STEED 5.34 Dintsk ne aee ee ap aie ean 2.43, 10.08
OSO04 PP RITE Fla Cin PO GT 12.237 (4): AIRED oe OR. EW ae a 2.55, 2.83
Corruption, Drug Trafficking and Other [Ds wesanne cn aswaheewdaan dla 2.83
Serious Crimes (Confiscation of | ae) 9 ee ee 2.34, 2.n82, 14.06
Benefits) Act (Cap 65A) fiRR Se ree 2.48, 2.n40, 13.05, 14.06
s 39 MOE Whdes cnenienecdanddakee 12.37
Tea Peee cae ort Peeeee 16.30 Cae, ere een 12.16, 12.n19
| PPS Sees eee eee ee reet Peer 16.30 {A a Se ae 12.17, 12.22
Evidence Act (Cap 97, 1997 Rev Ed) (Singapore) Ce ee. ee ee ee 12.17, 12.m2]
BLU ESIC ds 45 seWa Non nenn 9.16, 9.25 tare ae ate we eat 12.42, 12.56
Foreign Limitations Periods Act 2012 (Cap CO ee ee eee ee 12.27
111A, 2012 Original Ed) ....... 2.43, 2.49 YS Seas 13.04, 13.23, 13.54, 13.015
Income Tax Act (Cap 134, 2008 Rev Ed) i) eeee ee 2.36, 9.26, 12.09
(Singapore) Oe ee eeepe ae 12.34, 12.40
OLN bfcote td Se ee tebe yh a gl 1.08 i Ss oe Sor rere 12.13, 15.n84
oo SE eS pati dt aah iywe 1.08 ee 2.37, 2.72, 2.n147, 11.50,
oo SS Se eee. widtye 1.30 13.15, 13.24, 14.07
oe a a eal 1.30 ee ee ee ee 2.43, 2.49, 2.n87
ith F605 obi Ve 8 04-6 dc ne ee 1.30 REET CEE UR A we veiigntnt 2.69
International Arbitration Act 1994 Cay veers twentybeen caus 2.49
(Cap 143A, 2002 Rev Ed)....., 1.04—1.06, A vey. 2.70, 8.104, 12.40, 13.72, 13.77
2.04—2.44 t MELELCLEL LESTE ee ee 13.81

xxiv
 Table of Legislation

4 Se ee
2.69, 2.n141, 13.68, UD retiree be ee ts DADS
13.72, 13.n61, 13.n79 Se ee As
i 2.69, 13.69, 13.71, 13.73, 13.67 i ae eh.
I See a 8.2104, 13.71-13.72 Onis
Soke ee (ee ON
EE oe ee 13.82 tie
te pow es wen'adavthh 1.04
Oe glee at SAS ak ie: 9.119 International Arbitration (Amendment)
AAi I 2.67, 2.82 Act 2001 (No 38 of 2001). .......... 2.43
aa ee 9.111, 12.25 International Arbitration (Amendment)
s15 Act 2002 (No 28 of 2002)........... 2.43
| ay yar gee ia 2.11, 2.45, 2.n12 International Arbitration (Amendment)
prise SES pile glial, aarti ie 2.12 Act 2009 (No 26 of 2009). ..... 2.43, 2.49
ee ee 2.12 International Arbitration (Amendment)
Sree ie a 2.12, 2.88 Act 2012 (No 12 of 2012)...... 2.43, 2.49
s 16 Legal Profession Act (Cap 161, 2009 Rev Ed)
1) Ne Cage alt Sy analyDigger ag2.40, 4.07 EEA AS ene are 1.n12
eae oa F767) 5s eo he. 4.n7 CIMT ba Ys Sika ciadex as 8.35
et ee eek e Cab Ue eee 2.40, 8.51 $35... dmaenes 224 wa. 9.92-—9.93, 9.n80
s17 er re oe ee 9.91
Ee a a a a 2.40 Legal Profession (Amendment) Act
RT oo: 9h a ne 16.n16 1992 (No 7 of 1992)
OE sas vie Gens BOOS) 16.n16 Os TC TRE ee Oe L913, 9.92
a ae 14,39 Legal Profession (Amendment) Act
ee ee ee ee ae oe 14.39 2004 (No 23 of 2004)
ON SE ES ae 2.32, 2.113, 13.83 £6 cia coined hdhanddale rake Mee 9:93
4! a le 14.26, 14.56 Reciprocal Enforcement of
s 19B Commonwealth Judgments Act (Cap
2 14.27, 14.43, 14.n6 264; 1985 Rev EA) oii jcc wes cdtahs 2.121
Se bes aA 14.44, 14.56 Reciprocal Enforcement of Judgments Act
oy ge Oe ee ee 277 (Gap 265, 2001 Rey Ed)... cick 2421
oe epi See 4.23, 4.24 State Immunity Act (Cap 313,
rE Es ts 0 aa: aie sb aust 2.34, 2.43 1985 Rev Ed)
eit. Bao ereaey 14.37 15
s21 SAE) Cae eel i pe me © 13.84
OUNP cava sai 2.48, 2.74, 4.21, 4.23, 15.15 a ear err 13.84
ERT rae ke tats ae kote o act 3 2.48 Statutes (Miscellaneous Amendments) Act
a Se ts nod mech at trees Fy.1) 2003,N6 9 Of 2003) 5.6 sis sees wees 2.49
Dos ES Pree er ail 2.38, 2.68, 16.16 Statutes (Miscellaneous Amendments) Act
(> Sah PN Rg at SE OUR earpier 2.38, 16.16 2016 (No 16 of 2016); ..4..ss0 0s. 2.43, 2.49
er et eae e re Fee! al as 2.68 et EE ECT eee Tee TT 2.43, 4.08
DOLE oe Rep ee ire eee eer 2.68 BED iso4 os ties «es 608 40% 2.43, 4.08
as BS eres SAE 2 2.68, 14.53 Statutes (Miscellaneous Amendments) (No 2)
«YEP SL Pea Pa eePer Cee 2.87, 14.46 Act 2005 (No 42 of 2005)........ 2.43, 2.49
i didd did dastidsi sitesi
s 2.41, 2.101 Subordinate Courts (Amendment) Act
| WHS PPE ok Sak 2.41 2044 UNo 5 Of 2018) 5.0.nets.
oswd oa 2.n113
AO OO Ure Ee 2.39, 16.04 Supreme Court of Judicature Act (Cap
s25A 322, 2007 Rev Ed)
1 ees Se eee aseee ee eeee ee 16.06 ey oe ae ee 2.52
(a 16.n8 CS OS
ery eee Tee 2.39
ia Pah iia Kot ot Bote RD OO 16.06
627 see in eee ik sks > 69rd 1.04, 9.n63 Rules/Regulations
fo Ue Seer eee one tee ey Te 2.117 Arbitration (International Investment
Rr ne ater bon hak oes Eee 1.04 Disputes) Rules (Cap 11, Rule 1,
ee eo were Pere eee lL 1.04 ri a a 2.123
Py ae pe eee2 Siren 84S 08 8ES% 1.04 Civil Law (Third-Party Funding)
or ee eee eee, 2.76, 2.118 Regulations 2017 (s 68/2017)....... 19.22
rt. eee eS eee yee S Ne 1.04, 2.119 6 a ee ee are re 1.06
 Table ofLegislation

Legal Profession (International Services) International Arbitration (Appointed

Rules 2008 (Singapore) Persons under s 19C) Order
s 14 2010 (Government Notification No
ORs saws Cae eee ede 1.07 STSEGEBOION. « . dc caves seis 2.77, 4.24
(is. sured kneeseee 1.07
(Daclcound oes ne 9.93 OTHER NATIONAL LEGISLATION
+) Se ee ee ee 9.n82
Legal Protection (Professional Conduct) Australia
(Amendment) Rules 2017......... 19.n24 International Arbitration
Legal Protection (Professional Conduct) Art Toe 88 eet Lane -.3.n22
Rules 1998 SSD cess re Pere 12.09
666. candies mee, ie 9.n106
Legal Protection (Professional Conduct)
China
Rules 2015
| ee eee ne Arbitration Law of the PRC
ee Ore, 7 5.29
Supreme Court’s Rules of Court (Cap 322, PACU ANS 0c kee
ee ee 17.08
Rule 5, 2014 Rev Ed) (Singapore) Contract Law of the PRC
RSC Ord 11 AIC DE opie eG es cae 12.05, 12.9
EARS. ..Deo LRP ROIAL Hoke 2.n253
E48 occ ecu dee kee RASS 2.n253 France
BOR As males beep h hs 3.4 b05-0 2.n253 Code of Civil Procedure
RSGOrdi G6 sneuntsogs) uokrcey 11.26 POS oy 21)(2) eee Eee peer ware 2.n235
RSE Ord 1865 .50ch OO spb}POR: 11.6 PR ee ee 2.181
RSC Ord 23
Bde Padi ow variosecacs DRAMA FE 12.755 Germany
RSC Ord 59 Code of Civil Procedure
BOD Hib oeen dk SEL PP 15.n84 re\ca LU LC) ee a ey 13.n18
EDS pea spheat, teeta at 15.66, 15.7101
RSC Ord 62
Hong Kong
GD Spain crs What EEE ETE 5.34
SG GG
Arbitration and Mediation Legislation
bio car's osc SOAR 2.123
(Third Party Funding) (Amendment)
RSC Ord 69
ge han ete bl dll al dearth va a l.nlO
Elbe Pore, cael he, Ua betes Ee eh 2.n253
CO nd wae Be RE 6 ae ea ts cask | oe ee 19.22
na kde dninanel 2.n254
RSC Ord 69A BIUSBL ch ach wnkaacaka ter ene 19.22
BG crtnrsinin raed te ee eed EDI 2.n258 Arbitration Ordinance ............... 2.148
Cee Ameasivew
Rules of the High Court, Cap 4A
sr 2.118
i ssinwa UEC AM ch och s pctv ccenue
ene 1l.n6
edt aaa eee) Bl 2.254

Orders India
Arbitration (Appointed Persons Arbitration and Conciliation Act 1996
under s 59A) Order ee eee rer ae ee 14.12
2009 (Government Notification POR d 2 hate h ata. ¢xi cen a a 1.37
No S 650 of 2009) ........... 2.77, 4.24 Arbitration and Conciliation
Arbitration (Appointed Persons under s 59A) (Amendment) Act 2015
Order 2010 (Government Notification ORG tak ct Keb ac ad oNd Ke cenadd 2.241
NOS734 62010) 5. 0G 2.77, 4.24
Government Gazette Notification No 755 Indonesia
setaled: UCU nT Peer Tee 17.17 Law No 30 of 1999, Arbitration and
Alternative Dispute Resolution
Nee ee ee ae Dee ©17,17 Pate CHRLPAR) ic das cdc care deh
n 8.50
International Arbitration (Appointed iask pan | MREREEER TEEPE tie | 8.123
Persons under s 19C) Order TTP 8 86 CTE BREET EIN AR 14.15
2009 (Government Notification NG eS crhetiniedecrgeaen 16.10
No S 651 of 2009) ........... 2.77, 4.24 a ob (MEREERED SELELILES Phi te, La 1 14.15
 lable of Legislation

Myanmar Federal Rules of Civil Procedure

Arbitration Act 1944 (Burma) a SN ee eee ae ll.n4
es
An a ee 10.18
a ee eS ll.n4
Arbitration Act 1994 (Burma) ......... 10.n16 Model Bilateral Investment Treaty
Arbitration Act 2016 (Myanmar) ........ 10.18 a Ge a 19.n37

ee ea 10.n16 Restatement (Second) of Contracts (1981) (US)

ee 12.n8
New Zealand
INTERNATIONAL TREATIES,
Aamdewmnions Act 1996... wc ween ccnes 2.47
CONVENTIONS AND OTHER
North American Free Trade Agreement (NAFTA)
INSTRUMENTS
I rte 19.n37
ASEAN-Australia-New Zealand Free
Spain
Trade Agreement 652 25565555... 1.41
ASEAN-China Investment Agreement ..... 1.41
Arbitration Act 2003 yO), eS a ree 1.788, 5.55
NS EB EE EETbee 2.47
ASEAN Comprehensive Investment
PORES Dirac
te tee dea nies. 1.41
Sweden Bite FHM ei PeeOs 1.n88, 5.55
Arbitration Act (SFS 1999:116) Australia~-China Free Trade Agreement
i arate araracarutvalane
teexe 5.n36 Ch 5 Annee Fee
eS ee 16.29
Grenada-US Bilateral Investment Treaty . . .11.35
Switzerland ICSID Convention on the Settlement
Private International Law Act 1987 of Investment Disputes between
= a I a's aos 13.n18 States and Nationals of Other
Seates 19662... Pe 2.06, 2.50—2.51
United Kingdom APED5 GO) hos PRA ATI Sp ree 19.15
Art SAB e scr eta 19.20
EE CO oe tao uh nieces 4 0 mk? 2.02
Ama, Serco set 19.n21
EE REID oo owno. 9,0's,6,0,0.40.6.9 9 2.03
> i ea hee ee ea Sh 19.22
Arbitration Act 1950 (England Py ot: a aie eR ae 19.n22
and Wales) ....... 1.23, 2.03, 2.32, 2.n30
New York Convention on the
NE BOOBS on ik cs oy ec nc cece «8 2.47
Recognition and Enforcement
i as a 90k Gk fe ee ee 10.20
Se
of Foreign Arbitral Awards
Daa ae ae yee i403 4004 +0 > aoe 8.n8 ib): eee eR RAR REECE RE OEE 2.04, 2.13-2.16
(a a gta ee gaia ana na earea el 2.n27
Rely Gl G9 2.n23, 2.n257, 9.73, 9.n62
ce wcrc ntouses 2.n62, 12.09
BAMEIMMN chess PRES) ow cireva wv rales ON ee esaen 2.14
EE a2 Geb a's bw ona 2 2.n148, 13.n18 oy | ee. ee ee a, fa 2.15
ERs col neat keen be 08 ¥ a ty 2.n30 i. BLO) ee ee ae 2.76, 15.15
CR oo a 4 a bed antds 6 Ps 8. ede 5.31 ee L 2.119; 2.122
ee a he
ee ok cae on oh 00% nakeaee 5.n31
(1)
Civil Procedure Rules (a comer
even ere eeTs 12.57
a ab ees ee ad 8 ED 11.06 ee ee 5.33, 5.36
ne
8 al tl rar SP TE 11.26 Te) 7.41
S|
EN se paras av eess beens 16.n44 eee ee
EE 13.29, 14.n6
ee euees 19.22
Criminal Law Act 1967 .....-+e ea 12.57
Act 1986......0+++++ee0es 10.236
Insolvency Regulation (EC) 593/2008 of 17 June
2008 on the law applicable to
United States contractual obligations (Rome I)
American Arbitration Association (AAA) gt | ers 2. ee 12.57
South Korea-China Bilateral Investment Treaty
Mediation Procedures 2013 BRO ocr re tree RES 5 11.35
k,n re ee ee . . 11.07
UNCITRAL Model Law on International
American Arbitration Association (AAA) Commercial Arbitration
Employment Arbitration Rules 2006 1985.... 1.04+1.05, 1.23, 2.04, 2.17-2.42
> pee ae see OUR Se DP tAPF 2 .. 11.07
ee ee 2.n34
 Table ofLegislation

Art 1 Ast BS osc «acct RRO ied 2.28, 2.257

Obs, aia Fairs
kv haehereraror 227 Art 36 . 2.28—-2.29, 2.116, 2.n255, 2.n257
(3) (Didi ncaa eeteen eae 2.33
(b)(i) .. .caend. eens. baat 2.09 (OGD: OO ikicnnlh asic & cake cee 5.n36
DERE) cousin arsesnallahenceasa
tarxtaie ee aa 2.09 (W). «cv demmodeh Suess 13.29, 14.6
(2 i)Atk. ee ae 2.09 UNCITRAL Model Law on International
PSOE) siieicavntin elsitinsticeene ee 5.n30 Commercial Arbitration 2006 ....... 2.44
bert Os cit GRRE DRGs ae 16.50 BIT oka ss i Spa
ee s cho sks 2.n87
Are 5.é pis fdas) EAM Eee 8.n104 Art17A
Art S104. OL Agee 2.48, 2.61 eeee ee
Are 10022); 22. GARI... 2.42, 8.n10 Papas. Fe0 aoe & gu hive Ee 13.07
Art 11 WEA ea Sas bo en cine anaes owen 13.nl0
1) oe es eee ae 8.59 CSIC 3 hod fp ae 13.n10
(Bie ee 2.73, 2.n75, 4.07, 17.17-17.18 |UNGA Resolution 31/98, UNCITRAL
(7 TI aR ae Tore tee 4.07, AZ A7-17.18 Arbitration Rules
) ee oe eee Te kee ee ee 8.59, 8.n19 Recital’? 5, .bisik Ae ee 17.28
Art 12 UNGA Resolution 65/22, UNCITRAL
COee oe ck eee 2.100 Arbitration Rules as revised in 2010
2) a Oe ee: ee eT 8.61 Reciral 4... . 2 SEG AA A coe 17.33
Art 13 Revita? cuvcvacocaentaunneen
crue 17.n30
CU) Se: ee gsRee ey 5.n22, 8.115
ke ae Re ee Ee A 8.2108
Cao a ae ae a 5.19, 8.115, 16.43 ARBITRATION RULES
FS) 2 eet ag OO PO ae ee 231
(1) ... 2.18, 2.82, 10,14, 10.18, 12.64, 12.73 AAA Commercial Arbitration Rules and
7) ae eee 5.269, 9.50, 10.32, 10.nn44-46 Mediation Procedures (2013)
C) Oe re SB 2GMOIE BOO! REBRIOAoanan aarnagprep-ateane 18.210
At 18.6... eee eee eee 2.100, 9.08, 11.752 AAA Construction Industry Arbitration
Art 19 Rules and Mediation Procedures (2015)
eC IE et ne eee 9.05, 9.n3 B38 Ss st eae
Dcanna 18.n10
BELO Ree nc mtheciys seaetn content ister 9.269 ACICA (Australian Centre for
Art 28 International Commercial
thse iss cighyapagingi 12.58, 12.276, 12.077 Arbitration) Rules 2016.......... 13.n20
ONG BOF r 9+. crrvexensinings
abn MORE . CRMRe cy dike
ic cice kee 8.n16
area eg eae 2.21, 12.75, 12.99, 12.n107 Fe Nt les ad ia Bis SonSs ak 4 16.65
OB se toningoysiniocrepnprtrip ajnys ye SD AA nes, akan s one ak a 7.24
Art 30 PEM ON gk nd vhh ak wdaden 8.88
(eve reessersseneveneenaens sou. y>) aa 16.25, 16.n31, 16.43
Qi rereeerreneerenerreeerens ee. CRWeNS. Ge, mameak 16.n41
Att
1
31(2). s+ +s se vnees 2.100, 6.55) 14.23 Art 22.4.. 0... ss .ascesnageasnne val
ee ee ne ae ee 2.n179 AST BO Ae Sees eae 9.067
Oy, is Ah eRe. d0-43.0.9.5.6 BRASELTON Ce aa
Beer sore mnena i ttias 14.56, ao IEEE Ges snliCans ny «sss nek ebins 13.06
NMOS Cone e none saihy ESE, sss << 05s s mins tenn cen eee
(3) MO ee yi OT he ee ee ee 14. 56 Art 39 papa pte hes
Art34. 2.30-2.31, 206)2119,13.958,1446
16 02
Andi... 8.n29
GARY > «0604s
Mheinn eines wi2.88, 14.47 a ae 8.n112
I) (a)sit eitteaelih etal 2.41, 2.86, 2.93, 2.100 Schl,
Late Te ee eT
OER D xn SEUU ES TUS 4d baa a be 13.37
reteUa 10.18, 12.57 CIETAC (China International Economic
(a) (ii) ssihdinetpnaig tea oi — and Trade Arbitration Commission)
Rag 5a Arbitration Rules 2015
co sen ey | *iingilageb) a AEE RECENT
eT 8.nG2
OUD anim aehs ymewnes BOF Pa OY, 8.n88
verre S105 2107 ABTA. aun peredae 9.290
Saeed seecnene 2.84, 10.40,ats WAN re cciaxe anes 16.23, 16.025
ae i ee eee ee : Rb S812 03, scat ere

XXViii
 lable of Legislation
NS ee
pL eea ee 6.n10 eT oe or 8.75
ON Se oeoe r 6.28 IBA Rules on the Taking of Evidence in
ff SS ee eee 9.n73 International Arbitration 2010....... 5.59
DIAC (Dubai International Arbitration en Se 12.20
Centre) Rules 2007 ee ee es 12.23
EES Se 8.n62 ee 9.nl0l
Ee 16.n28 ae ils
Swe iet HS 9.n95
DIAC Rules 2013 Art 9
a eee Be ae 5.n20 ee 12.53
HKIAC (Hong Kong International eS ua be 12.53
Arbitration Centre) Administered ICC (International Chamber of
Arbitration Rules 2008 Commerce) Rules of Arbitration
Se Cn a! ee a 3.n15 a ee ag ees snddvs Hibs 1,15
HKIAC Administered Arbitration Rules Piet TEENS SE oS a ed's 13.70, 13.n63
«teeeee ee 6.n18, 13.n20 ICC Rules of Arbitration 2012......... 13.n20
ss
wide we dae ace stk 8.n16 App I
IPT OT, ds 5-5:b's8.225, 8.n29, 15.17, 15.n51 Art 2
Rattle nas 5. eer oon}. 15.n54 eB Re oe OD es 4.n30
pS oy ee ee Ee Cone ee 8.59 Oe oui vinc th ka
e tec 4.n29
IRR Bia). Biles sé bcs
t4 RR. 8.n88 1S, | er eee ees |g 4.n42
vo ES ae eee e 8.n32 |. Se SO Oe be we), 7.n12
Bere Sittiateedl étevs wens 16.65 ICC Rules of Arbitration 2017.......... 6.n18
ARG: én 6 xs s BOMBA bieatixmeia: 9.n67 jo!) {ees ee 1.736, 17.n12
fs OE re + Ue 9.n91 WORE DIGELS a ranmie a:bat Elm nie hae 5.n26
RTGS 5s is oeSACRi colnet weet. 13.06 Art 6
pe ES a ee es 9.67 BQistecnta witesraa.a le 7.68, 10.02, 10.n5
oe Siw ads cb ade <n abide 9.n94 @OO4 ssid aanesé Laokuduwd 7.27
rich
NN dg on Ke 400i SER 7.27 Galati Sees ea ak nee ree 10.”9
ONE Bini $n kT s Cis Ge wities 7.n24 ($) .nnind onlliv enehan s®md & 9.67
ON aha w 6ants- wave oaldys alok 7.61 BIL ci dus cian odd nok le Ceeere 7.n12
aie
8 bee teed awe Pao® 7.68 (OX. ost note s : 15.29
bus acniheddé
CE ere ers FS 7.77 AE i cca seen teense 1aee< 5 Ce 7.04
| AN oe re BF i 7.04 CU cc bak bale MRA oka ee 6.n44
0 EE a ro 15.nl0 RGA ks 4x we dewe oa anne weTiels7I77
eka ces nead ae eaeo 14.n24 Tix coe an cenrd 0a ein nae eed 8.59
as es beds accunn es Ohaed 6.06 Art 15
0
OSS | a a Pe. mee er 6.n8 6 EP ee Pee Een me eee eo 8.n106
OO. RO ee ee 16.n25 Ces tacc oe Meda mertaPete ns 8.n109
NI a Sia Wo eile A ote ghia wad 16.n42 ee eee rer 8.126
"> el ee ere 16.23, 16.n31 Art 21
Oe Ope ee errr eS 16.228 (i)iwiivasits sdxesarval mm Kemeny 12.n77
eed ted oF ule aa stand Acts 16.02 CE. 604.02 00 dds RAED 12.120
ot Sr ores oe 16.210 pS eS Pe Saree 11.14
RE TES TT ee ee a 10.n1 0 ES ret Mere ere 16.n65
0 ees er 15.17 Ce ache wee hanna eds heewee 16.20
pe en eeePE ne 15.63 FN ot rere Te Teco r Tre 3.14
eer erry 24 Pere, 15.17 a er re «o 12.n17
‘ree 15.63 eeeee ener ee 9.n91
HKIAC Model Clause ..........0000. 12.n87 PS ae Ee ee) es eres 14.n11
IBA (International Bar Association, Art 28
UK) Guidelines on Conflicts of aA thats’ <2 USN VE 13.n13
Interest in International Arbitration Med éc as chs cecerdeteqrsees 13.70
I win opined 8.64—-8.69, 8.nn83-84
tao Art 29
PartI BSG sek yeti aw ovaries
une 13.34
Para 2c)... ncesnevensveccntowes 8.64 eee 13.23
paraB(d).....cereeccecevvecrens 8.76 ME Socwis<
da aeseteue
n ts6.n44, 8.n16
 Table ofLegislation

Art 30 JCAA (Japan Commercial Arbitration

(2). a saone wate mailgt ale 6.06, 6.n15 Association) Administered
3a). .2h2% sommuth eae 6.n44 Arbitration Rules 2008
ya, 717 | a aie agree AOR 14.n24 Art §9 ndiiiecuds bennieerodliedst 3.n15
Pt RS oo vin ve cets alee eed See 14.14 JCAA Administered Arbitration Rules 2015
Fe AC 9 em 15.n79 C2S fo iw chore Les Se eta 8.n112
Art 38 COR? sin Least 16.n31, 16.n42
OE scans cis Si Glee eee 15.nl0 CGE oi cow dawns us eee dk ee 6.n31
FO oS hesa bn Cae ca 8.21, 15.187 i 8) en
eC EMS eo 6.n8
Orie ee aye ebus eee eee 1553 (BEN <x: dnpebendl sectacckii . 6.8
AstG.... +. eee > kee 16.02 KCAB (Korean Commercial Arbitration
Appilll ...cciwiichA
tc ates daemon 15.29 Board) Rules 2016
PEAY iso era Se cee ede wore 8.21, 15.29 a ee 5.n20
App V Art 1260.3) eecsettvd deities’ (34 8.59
MCG) a incic LOS. geek 4 eh 13.n46 WATERS TE, PS 2c dé. oc anand cen ee 6.n10
Art 6 PARE ITD x cis cs: ctichcr ware orere tema 6.n8
Cask oA ed eee 13.23 AstS712)) f4208 Caw 16.25, 16.n31
0 ee es eee pan neeerteete 4 F 12.n22 KLRCA (Kuala Lumpur Regional Centre
GEO) ula ba ad ecewicix siatthe 13.32 for Arbitration) Rules 2013
App VI AGED) oi osslic hasta aie mens 5.n20
Art 3 Ar IG. Cte 16.23, 16.”25, 16.n31
(Q)i.cid.ogieeOS AERA So shale 6.36 LCIA (London Court of International
Og Sieisn ixWawa ge 6.36 Arbitration) Arbitration
CON iis aiaSore eae cies oo Rae 6.30 Rules T9RS sca se kta
nacs 3.08, 3.14, 3.5
Ret 4. 5 Aaa Oss Se 2 ey 6.n8 LCIA Arbitration Rules 1998
ICDR (International Centre for Dispute Pt on eeree 9.2
Resolution) Arbitration Rules 2009 0 Li Ee as 12.n4
| En a OS BE wf 13.n20 [S) wrprridacesanim hebicmunet Othe 12.06
ICDR International Dispute Resolution LCIA Arbitration Rules 2014
Procedtires ZOU. focus scnsink anche Re 11.07 Oe Li knee 5.n59
ICDR Mediation and Arbitration Rules 2014 | iN nene ce 5.n68
PUB Kod widen wie, ec aed a dxad 8.121 pot a 7 pee eS ee 5.37, 5.n30
PERN S: 6 6.5 1k hed oobi a Ae 9.n75 Fk. a ee ee 8.62
i a eT | 18.n10 Cr Sere e 8.n88
PCO )isvn'o.s thth thn os Fae 16.n65 1 he ET aE. 8.n88
YS a ee are ern 15.28 TOE DADs deciles Acad hel eacadiolelie 4.n29, 4.n30
Ee nt Oe eS &|8.229 PAM Rie, 5,5;niesHiksmoras nares lea eee 8.59
Art 37 tt A a Ca eee 8.27
OE ee, ee 16.n31 eee. 7.04
ICSID (International Centre for POTIONS a + wine cnemicave caaahalle 6.n44
Settlement of Investment Disputes) | ne Sere te 8.n108
Arbitration Rules 2006........ 3.30-3.32 i a a en. 8.2109
SF tert .0tds ben deveeecke enRe
s 19.11 Be x nctacibhenswasmcoealal 8.n121
ee Te ere ee eee | 19.n22 | a Ss |11.14
ee ee renee | 19,32 ne ie 9.n36
ot ee ae Aes Pere 3.n27, 19.34 “cal ey Re
FOO) ons vnewnd viecen ews Tk 14.n12 9.67
a 9.167
r4l WIG Bn dab os isvesvekeuacacede 12.n88
| Se 11,08-11.09, 11.17, 11,20, 11.30, CUES Bins inka seve ttt ebele 9.n91
11.32, 11.35, 11.753, 11.756, 18.10 ARAL ss. tGenennls obs 12.1, 12.n4
gs ee 18.10 Art 22.1 \
DROVE 6.Uninc dcecck
nas
teont 19,12 Gr) eosvadvk enctewwl nin 7.61, 12.14
JAMS (Judicial Arbitration and Mediation
INS PN cc cc cewecune deli 12.26
Services) International Arbitration Rules 2016
er ey
e Pree ete 7.61, 7.68
eins pt TE 11.11 PRUNE vi< cc ucenedttercies 12.77
 lable of Legislation

CS TE ET ae 7.61 SO A 13.n46
SS SS seae ae eA 13.213 a 12.n22
OS a a eae 12.259 iia
Salat eanne awis ena 19.n6
[7 | 12.250, 12.nn52—53 SR pea Se, oe 19.n20
Se ESa eae er 14.n24 ee De Dimer ts Seite Ps lty dab 3 4 19.32
6 IE ee 15.53 Ae Mt 8 bis Fi eid déeats Se 19.32
ae a 16.n25 SCC Expedited Arbitration Rules 2010
a 16.n42 SESS ES a S 2 10.n1
ee 16.28 eeoe ka waded 10.n1
CS Ae a ea 16.02 Ret TAME)
AA tks 6.n8
5 IEE Sana ais ae 16.n10 Die Me SOE Oe 5 HR OK i os Ses 11.12
a a 16.65 SCIA (Shenzhen Court of International
LCIA Schedule of Arbitration Arbitration) Rules 2016 ........... 3.n25
ST go a ae 15.28 UNCITRAL Rules of Arbitration
i 8.n29 S076. « . ncuiste 1.n101, 3.08, 3.14, 3.nn5—G,
fo) TES ey ae Ie 15.63 17.28-17.34
Netherlands Arbitration Institute Rules FO 5, oe ee. ee eee 17.23, 17.35
ek POORER OP he 0 6 13.n20 Art 7
SCAI (Swiss Chambers’ Arbitration Ns a ay atkia sti Dip wrika 0% 17.23, 17,35
Institution) Rules of International A th eis haa ga ata-g.Bate 17.23, 17.35
Arbitration 2012 rr a eee ek Sree re ae 17.35
SE ee ae ee a oree 2 8.n1l12 BRI. ks ican ook Ee eee 7.23
nd a osteidisnorienips Rake 8.n32 MeROEA) os. x a edie din one oe Re 10.52
i ane mnenn t 16.n65 DD. 5 6 x36 Ser ee 12.n77
es nacic eos ecm 9.56 UNCITRAL Rules of Arbitration
I NS i ns aldnieanns-aa 10.253 LC SE eae amy 1.n101, 17.23-17.38
ae eee eee 9.n91 Art 6
ag,diane dso setearn ode 13.n10 OF ee ree eee 17.23
eS 9.67 (Qaiam Pine Oe eee 17.23
ae nce 4de 6.n8
a esd ainitie, aenceindndcar es des BBte, Seerdia,soe eal 19.n21
Art 43 Art 7
Ed shai e nbc ahi aterm fl 13.n43 fcAMEE cy te ce rea wt eee 19.n20
age, cntg am maine 13.n34 ee icis-ain Ok WARY Ae ea ee 17.35
GR ca memde ee 12.22
hie Ai erecdhinkinn CO eT Pe eT Perey. ot 19.19
Ns didn ain mcicnnnn 13.n46 pa: (reer Pr rr err et f 17.35
Art 44 Art 9
| 6) eee 16.225, 16.n31, 16.n42 Asa Sirinaics Saha nee 17.23,:17,35
re eee ee 16.n28 i Tees eee nee 17.23,;17.35
ee eee eT 16.02
(ne MEIN) « 6:0 \.0 e¥e tae ei unin en eases 17.35
Se ere eee eee 16.n10 ME Te cits Bets Ct eb ae 0 1d CRT 8.n88
SCC (Stockholm Chamber of Commerce) At USA) «oss Kemtpended saaeeedan 17.35
Arbitration Rules 2010 Ss ee reer. eT 17.23
is de Le vin Sins cdeptmmtemey 16.65 ere res errs 17.35
Wate 8.59
ik oidio.t.0.tcdreain.o.9.0.0:2.0:0,010 ee eee ee 11.52
II
ED 8.n88
ce noo 000c0.0.9 000 0.0.9:0.0.0.0,9,9 Seeee ee 16.02, 16.n10
I
BRET) inva cs crtrveryens ver enes 11.13
SCC Arbitration Rules 2017..... 3.n25, 13.n20
er 16.n25, 16.n31, 16.n42 PRC RIAS) orem n 649 49 Gat tee tees ens 10.752
19.n21 Po eee eee eT 9.n91
ee
AG. AV dco.0.0.0-0.00.9 do 8.n32 BISA) v6 vee sctaeesesesavecuss 12.n77
Det REG. BAK 6 Ai 0000.0,0.0 ds 9.n91 BIEL icc chavcwnwosetah edxodes® 3.n30
Re TF lls tioaiVibitve «¥.0:0->.0.0.0 Pos 9.67 UNCITRAL Rules of Arbitration 2013
BITE), 4.vavccvacnsoverctsvansne 17.32
ee ES, in 5 0.0,din8.0:9.0-059 11,12, 11.nJ5
Py Ee, de Re en 16.02 UNCITRAL Rules on Transparency
pI inTreaty-based Investor-State
Pee TTY 0.0.0.0: 09-0010. 0.0.0.0 9.0.09 99 0 13.034 Arbitration 2014 .........ee eee 17.32
 Table ofLegislation

ie ee re 17.n34 (5. iccur d<ue vasielit Ree 4.10

PAGO... a:lesalenalavandincdva\anevasievdntuate
aamnian 19.32 0S FActxdtaii Mewiblebhcns 8.n73, 19.18
11 7 "Sapa RSE ener en. S 19.32 § OS bie cc, Cate. ccueeee 4.21
IN iy he ed 3.n27, 19.34 SSG SA. DEAL incwiawdoanun 3.29, 19.11
WIPO (World Intellectual Property OGD .ccrieine stoned ch deta ees 3.29, 4.21
Organization) Expedited Arbitration IETIE wv datowaste GpSree cecnwbash elves cies 3.29
Rules 2014 Te SR ESE Os 3.29, 4.21
PEE GS . sisiieu'ss srs obatadipnck bi daxcieay ee 6.n8 EIT <:wainescien naian-de np eihataleswesae gui ace 4.21
On| = 2 ORaT Se 3.29, 19.19
SINGAPORE INTERNATIONAL BOUL situa ae ids paride
aie eee 19.19
ARBITRATION CENTRE (SIAC) SO) GCcniis. dowwered Aceueeaak Ea 4.21
Draft SIAC Rules (2016) pre uikce O Rc iwctasknae 3.29, 4.21
Vee ree ees en ees ter tireae 7.n1l1 C2 Se a on on BORE te oka 3.29, 4.21
OOo) ick cee ee ae 7.703 Cok ntaviocc wien Wake 19.08, 19.22
SIAC Code of Ethics for an Arbitrator TA ANN, 1;cht wierpsdverdyob oaouag carci 3.29, 4.21
PETG ee ae ates ize, yi 3.17,35:016. FO FA sisee wratenrmme
wee au eaten 4.21
SIAC Code of Ethics for an Arbitrator £124 2oud suse wth 4.21
|)1 RA ae eg Ce eee 3.179618 CES. ijs6s sock Berek tenet 19.n22
paral ect 6.02, 8.19, 8.49, 8.72, 8.n64, tS A °.d pee oe 3.29, 4.10, 4.120
8.085, 9.14, 9.84 6143 dsoccssmnd eet weenie 4.10
Dik Jah Perea ne ea dheeo rte 8.19, 8.n26 PROS). ss soa 00's vo se ee 19.11
Paa2sr eres rsh Sone res fesse rns 8.19 SMG ccntcns Linke ct aeeeeeetets 4.10
ig ca Bee Reed eared ware ead sist8.19, 8.75 CAT gaia he. sak Sent 3.29
Pala dF cste Srna eer hee aseee 8.55 UE |S an wee 4.21
PRESS ele a ee Oe 8.62, 8.279 AS Riciiiia ek HO «ania ddI 19.20
Peer ee Pe ie Ne nepe MED 8.83 ES Ee eee ae 3.29, 19.24-19.25
pata SS? RP PPE IS) Oa 8.19 1S Se ee ENE EE 4.10, 4.21
| el AOR seitSstAre ar eaeearae 8.19, 16.21 ee S| | ee mR >” 3.29
SIAC Domestic Arbitration bits heehee peli a ek ie 3.29, 19.08
Rules 2002...... 3.33-3.36, 18.01-18.05, GT SOME, scincits a nrstceamiienais le 19.27-19.30
18.22, 18.23-18.26 1D Aairck Sek ace wien Ral c a Wee 19.28
wis See eae eee POP e ee he ee & 3.n32, 18.02 oe Ae ee ee 4.21, 19.27
Wer Pee T SES OORLE LE SEE ECE 18.03 PEAT Biss cuntitelansdiniuthlabticiaieicnaen 3.29, 4.10
heat ER LARA RETA SORTA EE 3.34, 18.04 ii innisiiaeanieempuariasaliie 3.29, 7.n16
FO LAPT RO EEL EL AO 3.34 sh ee oe ener 4.21, 19.31, 19.33
il, SEWe RAEE REESE E AER E RET EET 3.34, 18.04 TVS he Kamen tnad 4.21, 19.31, 19.32-19.33
Lee TEEPUOES CES ee CETL RC 3.34 CPD DAN, BAGO soraseiirnonisacd 19.31, 19.33
i oe ee LE ee Dy 18.04 Cs i Te eT 19.34
REV PRECISE LTPT RCA LERL ET ee po 3.34 Re ERO Se 3.29, 19.31
i eee eee ede fae e 3.34, 11.07, 18.04 Ey © 19.31
SIAC Investment Arbitration 19. Gs haere inns a ehined, aaa 19.31
Rules 2017...... 3.27-3.32, 19.01-19.38 CRIT viv vcsc RUGS Coimde 19.31
Introduction Redes rcnansicsnnniitekniinvattdicncasilasd ual 19.31
|
igs! LEREARURAL A SER TR EPR ET 19.14 TOI nn 4a nion neticsxptntria dovisnieasec el 19.31
Sepade MRA ERLE RS PROC RE ROLE Ce 19.13 S| te ne | 19.31
OR PT LE IRRIT EEC EC Cea oe 5.54 ODO nS ails ooo 0 kt CO eeieily 19.08
gl See ee 4.11, 4.17, 4.21, 4.24, 19.32 UR a Re 2 ae 3.29, 4.21
JL) MERE een Peete eee 4,21 RED icc ve estin arkiniciin'a cgrtenvaiens dd Gets 4.21
BIO io. SMT TOO ERR Coe, 4.21, 19.12 Se ee ee eee 4.21
EL o's CUA PES TAN eres 4,21 oe ee ee fd or4.21
Vy eee eee eek aes ee ore ae 4.21 DE haien:vintinnitstnleadtaiaagte) 4.21
cdf RRERE? ALLELE RE SERETTPE 19.08 CFU SA ws wicretinineniarenieenenlel 4.21
J ERLE RARIEL ea ENS oe Pe 3.29, 4.21 inva ranebeasinesereignents
evan 4.21
LDV TWN ee eN Thee er pea 3.29 fe en... 19.20
to! MEP TEe LITER Poor cre 4.10, 19.17 i IT 3.29, 19.26
 Table ofLegislation

Ln Se a ee 4.21 I 6 ss awa es stub ba bd-s ofa alh 17.36

LS ee 3.29, 19.20, 19.26 para 12
0 ES a 3.29, 19.35—-19.38 Oe Dan nn wa natew news Oe 17.37
ee 3.29, 19.35-19.38 MUiMGnansuhcueeebcketawe cues 17.37
ESy R ee ae ee FP 19.36 rr ae 17.37
| ES ee eeee 19.36 CE ee ee 17.37
EE Rae ey a a 19.36 ES ee eee 17.37
ek 4.22 Ee 17.37
SEN ae ee. a 19.12 SEE Arisdesheuddsrcck esd teeee 17.37
a 3.29 OT EET CL OF OVE Tee Teer eS 17.37
(ES a a ae 7 4.21 SIAC Practice Note for Cases
9) tye a a 4.21 Administered under the 2010
OO EL eee eee FF 4.10 UNCITRAL Arbitration Rules
a i ee 4.21 (2 January 2014)
a ee 4.21 para 3
SIAC Model Clause (rev. 2015)......... 12.71, ea oes ee Be 17.37
12.n87, 17.n7 ee ee ee ee eS a 17.37
SIAC Practice Note for Administered ODA. cadena tssiwereiasdnka iG 17.38
Cases (2 January 2014) Si Bet Oo. oi cunacsencveenteeste 17.36
Tio dkvaccine nen eea Caaaade 4.01 para 12
Rc cineha dddned cea: 8.14, 8.19, 8.49 ef... ok:6 wah eee ean cc 17.37
Ee rere 4.14, 4.21, 8.33 fe) os Soa Ve bo eae
este 17.37
EL Pay a ea 4.15, 8.33 Doves v6088 coed Coe 17.37
a PARA s s AAA cane 4 60.00%a0 dee 8.31 Garis tad len Ki ve Sia ae cede 17.37
0 SS ee 13.39 Par 191d... sci ak as thao ee 17.36
| Re See Sa er nee 4.21 SAMO, «i cakSuaktadazeeacenc 17.37
EE CCT PT eT eTE 15.16 PMS 27594 ici it anacasdaageree 17.37
0 er eee 4.21 GEG 6 BROee 17.37
AL oe eae dnt a'4a'o 4.0004 aol 15.32 SIAC Practice Note on Arbitrators’ Fees 2006
ptt ed hn 4banga ska ssadera 8.n28 eee eee eee Se ee. 15.17
OSS. cansncia. 15.29, 15.46, 15.48, 15.59 SIAC Practice Note on the Appointment
MNS ies deh gaagaacsedndvash J 15.63 of Administrative Secretaries 2015 ... .8.22
Se re Ere et 15.63 GS Zig heey 6 Ue occ enena vee 8.23
ere een io15.63 CT a ee een 8.23, 15.38
Ee ee ee err 15.63 GUD) 66k chu tsct thc ateunyaeeseee 15.23
I SURAA Wah ea SA 54a eds awesess 15.34 i eee eee ere ere Te 15.24
OEBethy 4 ces anencannasiees 15.34 | | oe eee es corey eeeee 15.24
ER es eee eee ee Tee 15.36, 15.37 A Ries 1992 ave esenenaecemes 3.07-3.09
OPC ECCTY CET TET ERTL Tt 15.35 CBee es ccd gee qccben's pbs equ 3.n6
PS ereT er ree rererent. 15.61 Eien 558 e095 ceetetniant yeaa ste 3.n6
PDO 5s a's on nc hd tecnnns oe ewe 15.61 TERETE O EERE EEL TCT 3.09, 3.n6
MNT ch bn bien dedi nednncucnente 15.61 BG rss vectievecrrerceedeleeae 3.09, 3.n6
MRED cs kn vncec ctennernnces sins 15.n90 SP oy ev eed nwe OY peaey hear 3.n6
DORE Kok ck cen gc tenn eoctnnes dow 15.62 PIER Bic cre cuseenseangendtuvthpes 3.n6
POR na cece cen nncenenstbye 15.49 DEE Bic ee ac contaceda sci pk 3.n6
DUBA cada stcanrnncccancennt 4.10, 4.21 CIDR Mahdi) cv ecncen versa (ies 3.n6
a ee 14.52, 16.38 US «oe cee ck ig Aes CERES 3.n6
Ps ere ee 4.10 Pl Dia savecereoctcteens ceces bie 3.n6
SIAC Practice
Note for Cases BIG ie wn ceduecscccyecenedeceyewes 3.08
Administered
under the 1976 CRTs cine a0 cor nnvndonenk Soebebes 3.n5
UNCITRAL Arbitration Rules BIG covecndvcscesceequysdstansan 3.08
(2 January 2014) RPS. vceces ccevercees
cuetyr. ee 3.n5
3 BEEA ce veev ee cre ese er ene ecera ah 3.08
Sues begets, eroers ee ei SIG fv lich v.92 0carn900 eels Canons 3.08
Bao ionn'ahn nabin Biles 84 09 ARIST (errr ore eer Lene oyC 3.08
Parad .crccresvevenvenecrcoees <7 Me vicacntoverterie
tre rites 2.35
iii
 Table ofLegislation

hi odexevvevensercsavewn
Creo 2.35 06) eenecderdaeauamones 3.17, 8.11, 8.nl5
DOE bose Si ik ewe ince boKn eee 3.08 R5aS UES scan tintdansirentigaee 6.11
ee eee era 3.n5 r5.2
fe Oe ee 3.n5 RE SEE POSE o occwrcr uroanchaca abet 8.n15
oo ee eer ris. s eae. |)F 3.08 TOP oi cearerar wig atahieler ica iad nap ate 6.29
PIPE rh chen eee 3.n5 Iss chtides acid salilpeanbacs a*aahonedba tne aaa 3.17
PIO vb icescevvcdeaunrxr cere 3.n6 RIE A+ sash aiciasgad Gudea w anc ahetatiedae 8.53
ROO ss here cnc emedenewee 3.08 REA ocidksdewietatudion titi 4.06
SIAC Rules 1997 oes 400eeknuke eee 3.10 Of ere ee RE roe 3.17, 9.05
oe ae A Spe 8.10 URE? vine Cad ore ere nna atete _.. 9.16
r25 PAB i:hivwcrccdsoomdiovmededess eee 3.17
() <..5 Be aee ee Rea, 2.35 Ue ene a ae | 3.17
SIAC Rules 2007 .csni AA
n Lh 3.11-3.15 Ot i a ee ee oe 9.27
PD cng de des de ee 5.22, 14.04 | i ok Ee eT 9.38
2) OE eco Re a ok ee ee OE Ay 8.10 PAT Rites pcscrciend adatom eka ee 9.n51
I 8 55s het 3 4 dp dd 0 0-e ORE 9.05 SABA. i. on nw nse olor RECARO. 3:17
MOA Sita Me wen abide ¢ Sb 9.05 EL Pete sic ws ate cise ee ee ee 9.94
PMS) aera ae ee ee. 9.27 ‘21.1 ..iowestiadh eae 2.01, 2.3, 18.14
BRON oy.o7 dbo 0 he Rie we ae 9.34 £225 .2.0.0c2.eie eee 9.n103
2) (Cs Ser Ree arlene
e oe ae. 9.36, 9.036 PERS scicomotetheaeetieanepemane 18.22
LCS OPE ee ee eee ee are 9.n45, 9.n51 PEARS o downinnsseeeemmoeeet 12.30
OY 0 Ee a eee ee ee eee oS 9.23 r 24.1
Pe ae ce ee ere eee 9.n68 Oe ET TS. 7.04
AO 8 sie do pad-09 4.0 ot Reba v0 SER 9.94 EE) ei wicecranarioraahphaiicha\enanteiunandeensae 18.13
vl PREP SECRE eee eee. Se 18.14 2 |S (eeny somes 1.736, 3.17, 4.06, 10.03,
PS EE Pe eee EE Tee eee 9.n103 10.07, 18.22
VS re er ee ere eee. ke 9.128 DED Adi nbatdt eid ewe nencuaneen 10.33
DRA iy Hine #5. i i009. 84-9 040 cen 18.22 1 SR a TR. Yi 3.17
r 24.1 EDGE iehsineninathannaemmaaaiine 3.17, 18.21
ee er ee oe ae 7.04 COT tore concdamanwmeiherni Gel 14.n44
(Gig adi oo
a, mee Avis] 18.13 a ee Se te 3:17
Pek 11 Ve PARP. TNS ae 18.22 LEE Sstineninenwcmentiianiadinleen 18.21
PARA 1.2 Ie er edd’ 09. ee ee 18.21 a ee S 18.21
LS A eee 14.n44 |) i a 2). 3.17
MESS eR e
eee ee ee 18.21 2 a mee Le 18.20
DEO cert nertinteicerdvces de WR 18.21 fe ee Se eee eT 3.17
EMPOE? 7 1.40.00.01 009-9 0-09 nde eres Ce 18.20 EOD f cinmence nner naiemmnandnnenas 18.20
BIE oruigahe wanna tee) GOWAN 18.20 2 eS a a ere 3.17
IO ee ee ee ees 16.n26 eee: 3.17
sg PO E
ee Pee 3.12 COO) ie twinmnducnanetecextlete 3.17
Sch 1 SOA, Pad $ rteniwtenevnneeecdel 13.48
EE UL. ¢ 0 care davbce liv decla 18.05 2 tee Tee. + 3.35
Art 3 og Oe ee 18.05
MA is Kvcdaennerbekie see 18.16, 18.22 PRO wvititnenihentnidewimcnonsc teal 3.17
MOY. 6-04.t00 1d eeOReeusner 18,11-18.12 WAP incense shh aia tsthanivans 18.16, 18.22
Giiitsbrrcéondus 18.14—18.15, 18.16 S| So eee ee : . 18.10
Ce Ee et ee eee ee 18.18 ne rE 18.11-18.12
Gles tosis inewieareutereren 18.20 Pcnwecibndeman 18.14~18.15, 18.16
Wilias és ter 06nen dekhesd del 18.21 (Ge... HR ie a 18.18
Sch 2, Art 3
(3). 00 Ra. See beliny 18.14
See. CEE ET PEEP OEE OEe 18.10 A7). coe Ree .. .18.20-18.21
ee oe 18.14 eee ees 18.18
AT UES 19 0b noes pa 6¥ key Lael 18.18 SIAC Rules 2013 ....... 3.18-3.22, 4.06,
SIAC Rules 2010 ............ 1.06, 3.16—3.17 4.09
PRR Kemakninmedinta 5.16, 14.43, 16.53
inn thA LER ER EERE EEREOe 5.16 REID: stasievhnnndinnndeswansal 3.21, 6.20
he ea LEEREee 5.22, 14.04 ME) ote venti eosuhederbeonenedl 8.n110

XXXiv
 lable of Legislation

es ke 3.21 kN
ly Ry a DS 4.11, 4.17, 4.21, 4.24,
OS 14.04, 14.n4 5.21—5.25, 6.20, 10.06, 13.127,
A ee ee eee 18.14 14.04, 14.4, 15.52
1 Sa <oe ee 3.20 te 3.25, 5.26, 5.33, 17.n42
_ fa OSS ae, eee 3.20 a dd 5.26—5.37
Oe ei 6.11 NN i 5.35
5.2 ee 5.37
RO ee 2 ee 6.29 ee OR ie ek es 5.36
ES eee, ae Wee 14,22 ye 2are ae ae 5.37-5.38
0 RE eee eee 8.53 Tt Ohta a 5.38, 5.40
eee eB SS Ok he oe 8.n100 8 eo a, ee ee 5.38-5.42
a Se ee oe ee eT 8.n100 kM Aa a) 4.21, 5.43
os 9 Ww ae ae ee ee a 9.16 9 ea ee 4.21, 5.44, 8.30, 8.39,
(4. ja 8 Ds rere, Sw a 9.27 15.43, 16.51
oh & NE a Pe ee ee ee oe 9.38 + RE SE ye oe 5.45, 17.n42
5 8, 2 ey ee ee eeeee 9.51 St ee 4.21, 5.45—-5.68, 5.71, 5.85
So ee ee 9.n51 OS CI te eT RE OY 5.47
CS EEE ea 7 18.14 ce a ha SR: si 5.48, 5.72
0) Se ey ee, 12.n4 ee eee 5.49-5.53, 5.72, 7.70
a ee os 12.06 G22 5.853 5.54-5.55, 5.72, 5.44, 7.70,
eee mee F 18.13 12.n118
ai 12.n30 OA ee a 5.46, 5.56—5.58, 5.72, 5.83
SE ee ne eer 18.22 Sr ees! 5.59-5.60, 9.74, 9.79
Og Ree ee o 3.20 (oe dedeT s Bb don %sun cbaaeiee 5.61
Cea 7.04, 7.50, 7.n10 | a ee, es aes5.62—5.65, 5.87, 8.40
i Se poe 3.20, 10.03, 10.07, 18.22 A. ks athe ee ee Sef eee 5.66
Os Lian bis 6S eS od ccd... 10.33 5) SMR Se Nee eee 5.67, 9.n74
ee ee Oee ee eee Pe 18.21 eee 5.68, 5.72, 7.16, 7.58, 15.12
ee ot kas 2d mca,Sta tba metals ae 3.20 | ay a ee eee ee ee 5.69—-5.70
ee ee ee 3.20, 14.50 NMG 1A. ee 4,21, 5.46, 5.65, 7.78, 8.30,
cy 8 ay eee |e eae 14.59, 18.21 8.40, 8.46
FS ee ee ee eee 18.21 65s, Uke D793 73935771519 RFD
SS a, a 3.20,25.37 (Se, een Se ees 3.25, 5.76, 19.08
Os AR aay A= A er Po Ea TO ee 15.n74 "i ILE SEE OE Foe ree ae 5.71, 5.77-5.92
eg ee ee reeeee 18.20 Fa Ro .10,5.0c0snae
el Aen eee 5.80—5.82
ar ne 18.20 | Oe ae eee 5.83-5.84
Ed a Fe Mx, 0,<.0.0,0,9.0:1,0,0,2,
Loa40 3.20 ot Se 5.85—-5.86, 9.74, 9.79, 9.n74
Sch 1 (iF . Oho Mi diaeekis 5.87—5.90, 8.n53
pO OD en 8 aS 13.48 as, 18.5 BER bad 5.91—5.92, 7.58, 15.12
NE is dives tk WA aa wae 14,22 |) Se ee ee 5.93-5.94, 9.47
EE es ee oe ee 3.35, 18.26 PEGG AS Ot Fos ves tabdok 5.95, 15.29
SE SE Pee reeT Terr errs 18.05 oh. oe ee ee ee 3.25, 6.03-6.05
PR Te I f eee eee eee eet 18.26 LOts Oe ee 6.06-6.18
ae ee ee eee 7 14.08 EF red or ees en 6.10-6.13, 6.21
ee. eer ee 18.16, 18.22 | Ee eee or) eee 6.10, 6.14
RS ee ee eee eee We 18.10 Se
fee ws me eee oe6.15-6.18
AST a es 18.11-18.12 TOAY Ss, .0:0 4.14, 6.19-6.37, 16.n49, 16.n51
baa Abbi os» 18.14—18.15, 18.16 Is 4159, bi, i pido, OK. 4.21, 6.24
HOGA LEB he Pelve ster. des 18.18 SPP r rr rer mr 6.25-6.26
COPE F ice Link. a 0115 +i ar0,058 Fo 18.14 yo :0.0,5.5,9.5s5,
34 doen, Gs. 6.27-6.30
spy SOS SP Gee re ee 18,20-18.21 OS eee ee oe 6.18, 6.31-6,32
Fe errr se. eres oes 18.18 PT eos ee eS 6.33-6.35
SIAC Rules 2016 ....... 3.23-3.26, 3.44-3.45 SS a ee ee re 6.38-6.42
4.Oe ee Pee eee 5.02, 7.n14 | EO hy oe eS ee 6.43
re 5.02, 5.54, 17.13, 17.n12 4 3,25, 7.01, 7.05, 7.06-7.07, 16.50
a oer rey: 5.02-5.20
ore eres ST gS eee eee eer ee eee 7.08-7.15

XXXV
 Table ofLegislation

(Abeoah 27.06-7.07, 7.10, 7.13, 7.16—7.17 Ce a ae ER PTET oe: 8.15-8.16, 16.41

CB ee: SPSo Soe 5.72, 7.06—7.07, 7.10, SPR crsrens wenn emuenemeneeinne 8.17
7.12-7.13, 7.16—7.17 PUREE Riicictoctahesaackrtons 4.21, 8.18-8.21, 16.n5]
WED Chet Se OOS eae 7.15-7.17 RRO cdroucctis cacti 5.25, 5.62, 8.26
SEs i davis schechcdpapsiabah mR 7.13, 7.15—7.17 CUS, ienckcaeeendnts
hae 4.21, 8.27-8.28, 8.107
ts Pe ee eee 7.01, 7.05, 7.18—7.19, 8.117, 1 iy Re
Sa Seeee 5.66, 8.17, 8.29-8.33, 8.45,
16.33, 16.50, 17.n42 8.n41, 15.n17
Wie iseagiaets 3.25, 4.21,:7.20—7,277528: |e CEE eae ene a 5.25, 8.34, 17.n42
7.36, 7.48—-7.49, 7.n21 MONE cituniGopeececanmeueen 8.34-8.37
BES, onintcinidea eee V.2ovties "| i 4.21, 5.n58, 8.17, 8.38—8.40,
Gh.O 5 cise oe 7.23-7.24 8.48, 8.107, 8.n52
ee) SE ee 7.28-~7.32, 7.39, 7.5157370 . || 4.21, 5.66, 8.17, 8.41-8.44,
CaF AS Pica casein 7.30 8.47, 15.n17
CBO e Ss Oe ee si ee 7.28;.7.30 Pik akan 8.45, 8.117, 17.n42
ON <2 Re Sa ae en 72257130 5 A ees 4.21, 8.17, 8.45-8.46, 15.n17
CODE ee RGR iS argindinarerarghe 7.28 CAD2 eww 4,21, 8.17, 8.47-8.48, 15.n17
Cl ee ne TR ee | 7.29 RC Atexiwicwiotckekee 8.49-8.52, 17.n42
ORGS 5 St pgeS oo theta sce par Dd. aawiccanstke ncn 2.100, 8.19, 8.53-8.69
7 Ae ia An ae Cen Oe LeDon TT’ 2) | oe ee ees 8.70-8.71
17.4.....4.10, 7.21, 7.34-7.38, 7.45, 7.49, 7.52 PORE cnsinchirancxendtbeno iene 8.72-8.73, 9.14
WIG he elon x coeees oe Tea NTeoo PRIA a8 sini cncmcnneee8.19, 8.61, 8.74-8.79
FONE Mb oC Sb 7.40-7.46, 7.54-7.55 DES tus eocukaceee ken eee 8.80-8.81
BE OE Rivsvshgixcnsy ice eaves 7.47, 7.89 UI Dsincrcnsin Simul ecantpaeiokenl 8.82-8.86, 9.30
I ee REE 7.21, 7.38, 7.48-7.50, 7.n26 '. | nee 7.56, 7.91, 8.36, 8.87, 17.n42
(A: SR CS a ho renee | 5: 7.51 pe rs 2.100, 8.61, 8.79, 8.87-8.88
CEG ie chads dagd cowie crancn 13757152 PAR DU EO) GSS «nunca e 8.89
A Lacs npn a ated ichasedi-tre ike 7.30 2 | 8.90-8.91, 16.750, 17.n42, 19.08
EAN ha s 7.43, 7.46, 7.54-7.57, 7.91 r15.1 ... 4.21, 8.81, 8.92-8.94, 8.nn99-100
| ~ Sena re te ee 7.58 2» | a ERE ee eee a PRE, 8.95-8.96
POW.5ak 3.25; 7.01,'7.05, 7.59=7.61,(85117, OMS balalainttcachenctenrroiesiant 4.21, 8.97-8.98
16.33, 16.250, 17.n42 UME, Fibre 4.21, 8.87, 8.99-8.100, 16.n51
| ee ee a a orm 4.21, 7.62-7.69, 7.81 se a ee 8.79, 8.87, 8.101-8.105
ie tad ibd kr oadendancall 7.65 RR ar cicovicnurnrsoncnindtnianaiadai 8.111, 8.116
COE MG did ddaucodonadencui 7.66 ok ee ee eee eS. 8.108
a aE a ee 7.67-7.69 UGE ssitancnersonsinesnwtencne 2.66, 4.10, 8.79, 8.87,
POE ene drhendndouenivacasnire 7.70, 7.85 8.109-8.110, 16.757
A ee ne br 7.71 EEE schitineninndennirakal 8.87, 8.111, 8.116
CRI bivanvws 4.10, 7.70, 7.72-7.76, RAO ii.bnesiestxcshesia:decay Maen 8.112
7.80, 7.81, 7.86—7.87 FAG epcinvinentincecnc 2.66, 5.19, 8.113-8.115,
BORON wend nenenieumons 7.77-7.78
16.41, 16.43
Ce 7.78, 7.79-7.80, 7.88 Ey ee See 8.116, 14.29
COTA Fkve ns 7.62, 7.76, 7.81-7.84, 7.87 oe ee eee eer eae 8.116-8.117
OR cin hdnaa ei hettievinakiomianneiche 7.83 iS 8.87, 8.118-8.119, 16.46
Pe ah wnoesticnaudnsinddeate 7.83 2 4.14, 8.87, 8.116, 8.120-8.121,
Pin: cannkncpidvwndeeinnebibdile 7.83
15.09, 16.46, 16.49
ENF HP icnncnondnnumndedded al 7.85 PG aS uehercneeseiiancenbaneteenene 8.87, 8.122-8.126
FOS SF Hain LMR dd BR decane 7.86-7.87 CSF CRIA winiatenenicneinsoratywarenaniel 9.03, 12.02
PROM: 1:i ninemsn vinnie neceeetenetlll 7.88 CUPL AB Phin 2.100, 2.64, 6.27, 6.36,
SEO Rinin.k inipadonvininbcintimtsiedlt 7.89
6.3, 8.19, 8.118, 9.02, 9.04-9.15, 9.24,
A hi inevoevcrecd wesi 7.90-7.92 9.34, 9.109, 9.n3, 11.46, 12.19, 14.12,
gs ee 5.25, 8.02, 17.n42
2 ~ 15.09, 16.55
2.n73, 4.21, 5.61, 8.03~8.11, ee ee ee 6.02, 9.16~9.17
8.n10, 16.n51 TIGS 4 ASRAS 6.02, 9.18-9.23, 9.29, 15.9
ee ea et, ee 8.11 | 2.64, 6.02, 9.19, 9.24-9.26,
Pe?|Pe 4.14, 5.62, 8.12-8.14, 8.27
, 9.n27, 9.n96
8.28, 8.n41, 16.n49 SPEND Winsslaete ytaeclichetislansitcniicidlevabadesl 9.27~9.29

XXXVi
 lable of Legislation

Ce ieete e 9.30—9.31, 13.211 @: } sere 4.10, 4.21, 10.02—10.10, 16.42,

ee 9.32 16.54, 16.”5]
vy Ee eg Oeeae 3.25, 9.01, 9.19, 9.33 ee eee 10.11-10.31, 10.022, 12.n2
ee oti 9.02, 9.33, 9.34, 9.n1 “42 18 A ee ee 9.50, 10.32—10.37
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 Table ofLegislation

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PAOD. B cco Fo 8.16, 8.114, 10.10, 16.23, SIAC SGX-DC Arbitration Rules 2006 . . . .3.43
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kaos 16.48 pale2k ERO sw kbs local 3.40

XXxViii
 LIST OF ABBREVIATIONS

AA Arbitration Act 2002 (Singapore)

AAA American Arbitration Association
ACICA Australian Centre for International Commercial Arbitration
AIA] Asian International Arbitration Journal
Arb Int Arbitration International
ARIA American Review of International Arbitration
ASEAN Association of South East Asian Nations
BIT bilateral investment treaty
CEO Chief Executive Officer
CIArb Chartered Institute of Arbitrators
CIETAC China International Economic and Trade Arbitration Commission
CISG Vienna Convention on the Sale of Goods
CMOs case management officers
DIAC Dubai International Arbitration Centre
FTAs free trade agreements
GST goods and services tax (Singapore)
HKIAC Hong Kong International Arbitration Centre
IAA International Arbitration Act 2002 (Singapore)
IBA International Bar Association (UK)
ICCA International Council for Commercial Arbitration
ICC International Chamber of Commerce
ICDR International Centre for Dispute Resolution
ICLR International Construction Law Review
ICSID International Centre for Settlement of Investment Disputes
ICSID Convention Convention on the Settlement of Investment Disputes between States
and Nationals of Other States 1966
J Intl Arb Journal of International Arbitration
JCAA Japan Commercial Arbitration Association
J Law Econ Org Journal of Law, Economics, & Organization
JLPG Journal of Law, Policy and Globalization
KCAB Korean Commercial Arbitration Board
KLRCA Kuala Lumpur Regional Centre for Arbitration
LCIA London Court of International Arbitration
Med-Arb SMC-SIAC Mediation-Arbitration
New York Convention Convention on the Recognition and Enforcement of Foreign Arbitral
Awards 1958
Organisation for Economic Co-operation and Development
Permanent Court of Arbitration
Singapore Supreme Court's Rules of Court
(Swiss) Rules of International Arbitration
Stockholm Chamber of Commerce
Singapore Chamber of Maritime Arbitration
Singapore International Arbitration Academy
Singapore International Arbitration Centre
Singapore Institute of Arbitration
 List ofAbbreviations

SMC Singapore Mediation Centre

UNCITRAL United Nations Commission on International Trade Law
UNCTAD United Nations Conference on Trade and Development
UNGA United Nations General Assembly
Van JTL Vanderbilt Journal of Transnational Law
VIAC Vietnam International Arbitration Centre
WAMR World Arbitration and Mediation Review
WIPO World Intellectual Property Organization

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 AUTHOR BIOGRAPHIES

John Choong is a partner with the International Arbitration Group ofFreshfields Bruckhaus
Deringer. John has, over the course of some 15 years, handled disputes involving all the
major jurisdictions and laws in Asia. He has been based in both Singapore and Hong Kong,
and has represented clients in a wide range of international commercial and investment
arbitrations under the major arbitration rules (including the SIAC Rules and the SIAC
Domestic Arbitration Rules). These matters have ranged in value and complexity, covering
a wide range of industries and subject matter, and have included a number of billion dollar
arbitrations.
John is a Fellow of the Chartered Institute and Singapore and Hong Kong Institute of
Arbitrators. He serves on the SIAC Users Council National Committee (Hong Kong) and is
also a Singapore country rapporteur for the ICC Task Force on the New York Convention, a
founding member of the HK45 arbitration group, a director of the HK Arbitration Charity
Ball Limited, and he sits on the Equal Representation in Arbitration committee.
John is admitted in Singapore, Hong Kong, and England and Wales, and has been recog-
nized as a leading arbitration practitioner by a number of industry publications. He has also
spoken, lectured, and written regularly on arbitration. He is co-Editor of the Asia Arbitration
Handbook and a General Arbitration Editor of the Hong Kong White Book.
Nicholas Lingard is a partner with the International Arbitration Group of Freshfields
Bruckhaus Deringer. He represents clients in commercial disputes across a variety of indus-
tries, under all the major arbitral rules, including the SLAC, ICC, UNCITRAL, HKIAC,
AAA, and NAI Rules, and under all major systems of law. Nick also leads one of the most
active treaty arbitration practices in Asia, representing both investors and States, in high-
profile, politically complex cases around Asia and the world; and he counsels clients on
public international law matters and disputes. Nick is recognized as a leading practitioner by
all of the major legal directories.
Nick is an expert member of the Energy Charter Treaty Secretariat's Legal Advisory Taskforce,
serves on the SIAC Users’ Council and the Equal Representation in Arbitration committee,
and writes and speaks widely on international arbitration, including as co-author of the lead-
ing Japanese-language text, Understanding International Arbitration. A former law clerk to
the Chief Justice of Australia, the Honourable AM Gleeson AC, Nicholas was educated at
the University of Queensland, Australia, where he graduated at the top of his class in law and
Japanese, and Harvard Law School, where he was a Frank Know Memorial Fellow.
Mark Mangan leads the arbitration practice of Dechert LLP in Singapore. Mark has been
retained over the last 15 years to help resolve complex commercial and sovereign disputes in
Asia, Europe, the Middle East, Africa, and North America, serving as counsel in over 50 cases
and as arbitrator in excess of 15 arbitrations. As counsel, Mark represents clients in disputes
often involving a government or political dimension in the oil and gas, mining, finance, tel-
ecommunications, high technology, manufacturing, construction, and sports sectors. Mark
has a particular expertise in post merger and acquisition disputes, as well as those involving

xli
 Author Biographies
ea eee Sennen, 10, re ee

taxation, financial accounting, or complex quantifications of loss. As arbitrator, Mark has

been appointed under the rules of arbitration of SIAC, ICC, LCIA, KCAB, and SCC, as
well as an ad hoc arbitrator under Singapore law. The laws considered and applied in these
disputes include those of Australia, Austria, Canada, China, Czech Republic, England
and Wales, Finland, France, Georgia, India, Indonesia, Japan, Korea, Liberia, Mongolia,
Myanmar, Nigeria, Qatar, Russia, Sierra Leone, Singapore, Switzerland, Thailand, Turkey,
several states of the United States, the UAE, and Vietnam.
In addition to the first two editions of A Guide to the SIAC Arbitration Rules, Mark has
written over 40 published articles and book chapters on investment treaty arbitration, inter-
national commercial arbitration, and sports arbitration, and presents regularly at seminars
and conferences on those subjects. He is recognized as a leading lawyer by Chambers Asia
Pacific 2017 and Legal 500 Asia Pacific 2017 for his work in international arbitration in
Singapore, is listed in the 2018 Whos Who Legal Arbitration as well as the 2017 Whos Who
Legal Future Leaders of Arbitration under 45, which notes ‘he is viewed as “the rising star in
Singapore”’ arbitration. Mark was also recently ‘commended’ in the 2017 Financial Times
Asia-Pacific Innovative Lawyer Awards.
Mark has degrees from the University of New South Wales (bachelor of commerce, major-
ing in accounting and finance), the University of Technology, Sydney (where he graduated
with the University Medal for finishing first in law—summa cum laude), and Cambridge
University (for which he received the Cambridge Commonwealth Trust Chevening
Scholarship awarded by the UK government and the Pegasus Middle Temple Scholarship
through which he worked briefly alongside judges of the UK House of Lords, the Privy
Council, the English High Court, and the Central Criminal Court (known as the ‘Old
Bailey’)). Mark is admitted to practice law in Australia, England, and Wales.
He dedicates this work to his parents, Bernard and Joan Mangan, who continue to be an
inspiration to their seven children and 15 grandchildren, and his twin brother and best
friend, Robert (Bob) Mangan, who taught him from his first moments of consciousness that
good humour, kindness, and compassion can be just as effective as reasoned arguments in
the resolution of conflict.

xlii
 l
ARBITRATION IN SINGAPORE

A. Singapore as a Place for International 7. Cultural and legal links to its Asian
Arbitration 1.02 neighbours 1.34
1. Government and legislative support 1.03 8. Conduct ofinvestment treaty
2. Judicial support 1.12 arbitrations in Singapore 1.40
3. Reputation for neutrality 1.21 B. The Rise of SIAC 1.47
4. Stable and predictable laws 1.22 C. Key Developments since the First
5. The attraction of Singapore for $e
: Edition of the Book 1.53
international businesses 1.24
6. Regional growth 1.32 D. Structure and Content ofA Guide to
the SIAC Arbitration Rules 1.58

Singapore is the most popular seat for international arbitration in Asia, and the fourth most 1.01
popular seat in the world.' Over 2,500 cases have been referred to the Singapore International
Arbitration Centre (SIAC) in the twenty-six years since it first opened its doors, making it
reportedly the fifth most popular institution for international arbitrations globally.? This
chapter explains why.

A. Singapore as a Place for International Arbitration

The rise of Singapore as a global centre for international arbitration can be traced to, among 1.02
other things, its modern arbitration laws, state-of-the-art arbitration facilities, and a sup-
portive government and judiciary. Its common law legal tradition, coupled with civil law
arbitration practices, also makes Singapore attractive to a wide range of users of arbitration.
Singapore is moreover geographically well positioned, with a reputation for transparency
and neutrality. These and other factors which explain Singapore’s popularity as a place for
international arbitration are examined below.

' Singapore was the fourth most frequently selected seat for arbitrations administered by the International
Chamber of Commerce (ICC) in 2015, behind Paris, London, and Geneva; ICC, ‘2015 Dispute Resolution
Statistics’ (2016) ICC Dispute Resolution Bulletin 1 9. Singapore was also ranked the fourth most popular
seat for arbitration in a 2015 survey of users of arbitration; School of International Arbitration (Queen Mary
Universit y of International Arbitration) and White & Case, ‘2015 International Arbitration
ofLondon's School
and Innovations in International Arbitration (2015), 12, available at <http://www.arbi-
uk/docs/164761.pdf> (accessed 17 July 2016).
2 See Table 1.1.
 Arbitration in Singapore

1. Government and legislative support

1.03 The Singapore government and legislature are proactive supporters of Singapore as a place
for international arbitration, which is a crucial ingredient in its success. That support broadly
manifests in six ways.
1.04 First, Singapore arbitration legislation is based on widely known and used international arbi-
tration principles. As explained in Part A of Chapter 2, as a former British colony, Singapore
inherited the English common law and between 1809 and 1953 adopted various arbitration
statutes based on those promulgated by the Westminster parliament. In more recent times,
however, the Singapore legislature has gradually shifted towards adopting international
standards in arbitration and away from English arbitration law. In particular, the 1985
United Nations Commission on International Trade Law (UNCITRAL) Model Law on
International Commercial Arbitration (the ‘1985 UNCITRAL Model Law’) was adopted in
1994 as the framework for Singapore’s International Arbitration Act (Cap 143A, 2002 Rev
Ed) (Singapore) (‘IAA’). The IAA also gives effect to Singapore’s obligations as a signatory
of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the
‘New York Convention’).3
1.05 The adoption of the UNCITRAL Model Law and the New York Convention helps attract
arbitration to Singapore as it signals to users of arbitration that Singapore has a stable and
predictable legal framework which is supportive of arbitration.‘
1.06 Second, the Singapore government has shown the willingness, and the confidence, to adapt
its arbitration laws in the interests of the international business community. In 2009, for
example, in response to a court ruling that the existing legislation did not permit a Singapore
court to grant interim relief in aid of foreign arbitrations,5 the Singapore legislature amended
the IAA to grant the Singapore High Court such powers.® In June 2012, the IAA was
amended to support the emergency arbitrator procedure that featured for the first time in
the 2010 SIAC Rules.’ Similarly, third party funding arrangements have traditionally been
considered contrary to public policy in common law jurisdictions,® including Singapore.

a
meeeee

3 International Arbitration Act (Cap 143A, 2002 Rev Ed) (Singapore) (‘IAA’), ss 27-31, Appendix 6.
* Singapore is not the only jurisdiction in the region to have adopted the UNCITRAL Model Law, with
Malaysia, Thailand, Australia, and Hong Kong also having done so. The most populous country in South East
Asia, Indonesia, however, has not adopted the UNCITRAL Model Law. All of Singapore's neighbouring coun-
tries except Timor Leste have ratified the New York Convention.
> Swift-Fortune Ltd v Magnifica Marine SA [2007] 1 SLR(R) 629 (Singapore Court of Appeal).
® Following an amendment to the IAA in 2009, IAA, s 12A(1)(b) provides that the Singapo
re High Court's
power to order interim measures applies ‘irrespective of whether the place of arbitration is
in the territory of
Singapore’. In contrast, the Indian Supreme Court held in Bharat Aluminum Co (BALCO
) v Kaiser Aluminum
Technical Services Inc (2012), Supreme Court, Civil Appeal No 7019 of 2005 (India) that
Indian courts cannot
grant interim relief in support of foreign arbitration proceedings under the Arbitra
tion and Conciliation Act
1996 (India). The anomaly created by this ruling has recently been removed by amendm
ents to the Arbitration
and Conciliation Act 1996 (India) by making provisions on interim relief (s 9)
applicable to international com-
mercial
arbitrations seated outside India: The Arbitration and Conciliation
(Amendment) Act 2015, s 2(2).
7 7 s 2(1) now includes ‘emergency arbitrator’ within the defini tion of arbitral tribunal. See Ch 13,
part B.
* ‘The Singapore Court of Appeal in Otech Pakistan Put Ltd v Clough E ineering
SLR(R) 989 held that the common law prohibitions of maintenance tie
Ltd &
ar (rameter nathe
improper provision of financial support to a legal action by a third party
with no legitimate interest in the action;
champerty is a form of maintenance, where a non-party to a dispute
finances a legal action in return for a share
of the proceeds of that action) extend to litigation and arbitration
proceedings governed by Singapore law. In

2
 A. Singapore as a Place for International Arbitration

After an extensive consultation process, however, Singapore recently enacted the Civil Law
(Amendment) Act 2017, together with associated regulations, to permit third party funding
in international arbitrations in Singapore.? It did so in order to ensure that it remains com-
petitive as a place for international arbitration (while maintaining its prohibition against
third party funding for litigation or domestic arbitration in Singapore)."°
Third, the Singapore government is one of the first, at least in Asia, to recognize that arbitra- 1.07
tion can be good for business, not just individual companies seeking a cost effective means
of resolving disputes, but the economy at large.'' Accordingly, barriers to the practice of
arbitration in Singapore have been lifted so that foreign parties can have their choice of
counsel in Singapore-seated proceedings. While foreign counsel (with limited exceptions)"
are prohibited from acting as advocates in Singapore courts, they have been able to partici-
pate in Singapore arbitration proceedings since 1992. Initially, this was subject to the caveat
that a Singapore lawyer also had to be retained if the proceedings involved Singapore law."3
This requirement was removed in 2004.'4 In 2008, the regime was further liberalized to
allow a foreign law practice in Singapore to advise on Singapore law in relation to a contract
that contains an international arbitration agreement that has Singapore as the seat of the

contrast, around the same time, Australian courts were leading the way among common law jurisdictions in the
acceptance of third party funding: Campbells Cash and Carry Pty Limited v Fostif PtyLimited 2006] HCA 41.
9 Civil Law (Amendment) Act 2017 (Singapore), s 5B; Civil Law (Third-Party Funding) Regulations 2017
(s 68/2017) (Singapore), s 3. Third party funding is also permitted for Singapore court proceedings and media-
tions arising out of international arbitrations under these provisions.
'© Similarly, following recommendations by the Hong Kong Law Reform Commission in October 2016
that third party funding be permitted for international and domestic arbitration and mediation, the Hong Kong
Legislative Council passed the Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill
2016 on 14 June 2017.
"! In Paris, the annual turnover attributable to arbitration work by law firms, both as counsel and as arbi-
trator, has been estimated to exceed €200 million; Paris Place d’Arbitrage/Paris, the Home of International
Arbitration, “Enquéte relative 4 la localisation de la CCI et au réle de Paris comme place d’arbitrage’ (24
November 2010), available at <http://www.parisarbitration.com/paris-the-home-of-international-arbitra-
tion-supports-efforts-to-keep-icc-in-paris/> (accessed on 22 July 2016). Similarly, the New York State Bar
Association projected that a 20 per cent increase in arbitration proceedings in New York could add as much
as $400 million annually to law firm revenue, suggesting that the yearly total turnover among law firms in
New York City from arbitration is $2 billion (which does not seem credible); The New York Times, ‘Cities
Compete to be the Arena for Global Legal Disputes’ (11 September 2014), available at <http://dealbook.
nytimes.com/2014/09/1 1/cities-compete-to-be-the-arena-for-global-legal-disputes/> (accessed on 22 July
2016). As for Singapore, the Wall Street Journal has reported that the legal services sector in 2014 generated
US$1.7 billion, with arbitration being one of the main contributors. Wall Street Journal, ‘Singapore Aims to
Outpace Hong Kong in Arbitrating Disputes’ (2 January 2015), available at <http://www.wsj.com/articles/
si aims-to-outpace-hong-kong-in-arbitrating-disputes- 1420234202> (accessed on 22 July 2016).
2 Only a person who holds Her Majesty’s Patent as Queen’s Counsel may, subject to certain conditions,
apply to be admitted on an ad hoc basis to appear in Singapore domestic court proceedings. The person must
not ordinarily reside in Singapore or Malaysia and have special qualifications or experience for the purposes of
a particular case; Legal Profession Act (Cap 161, 2009 Rev Ed) (Singapore), s 15. The circumstances in which
foreign counsel may appear in a caseon an ad hoc basiswere recently explored in ReLandau, Toby Thomas QC
[2016] SGHC 258 where Mr Landau QC’s application to appear in a Singapore High Court action challenging
an arbitrationaward was rejected. (Separately, on 11 May 2017, Mr Landau QC was the first foreign Queens
the need for him to apply for ad hoc admissionto
Counsel to be admitted to the Singapore Bar, thus alleviating
for
in individual cases). Similarly, in Re Harish Salve and another matter 2017] SGHC 28 an application
appear
ad hoc admission by an Indian senior counsel was rejected.
'3 Legal Profession (Amendment) Act 1992 (No 7 of1992) (Singapore), s 2. SeeCh9, paras [9.91-9.93].
'4 Parliamentary Debates of Singapore, Official Report, vol 78, 15 June 2004, column 96, availableat
<http://sprs.parl.gov.sg/search/report.jsp?currentPubID=00004669-WA> (accessed 10 July 2017).

3
 Arbitration in Singapore
ag
wi a
arbitration." This alleviated the concern that foreign counsel could only advise on Singapore
law in the context ofan arbitration after the arbitration had commenced."
1.08 Fourth, the government introduced tax incentives in 2007 to encourage law firms to hold
arbitration hearings in Singapore. Law practices now enjoy a 50 per cent tax exemption for
up to five years on their qualifying income exceeding a base amount for international arbitra-
tion cases with hearings in Singapore.'” In addition, it was announced in the 2016 Singapore
Budget that non-resident arbitrators will enjoy a tax exemption until 31 March 2020 on the
income derived from serving as an arbitrator in Singapore proceedings."®
1.09 Fifth, the government was the driving force in the late 1980s behind the establishment of
SIAC in order to further the government's objective of establishing Singapore as a regional
centre for legal services."
1.10 Sixth, the government took steps to ensure that there are suitable facilities for arbitration in
Singapore. Specifically, in 2010, the government financed the transformation of a former
colonial government building into Maxwell Chambers, the world’s first fully-integrated
international arbitration complex. Maxwell Chambers houses state-of-the-art hearing facili-
ties, break-out rooms, and offices for arbitrators and arbitration counsel. It is the home of
SIAC.”° Many of the world’s leading arbitral institutions have also established branches at
Maxwell Chambers.?" Maxwell Chambers has been ranked as one of the top three venues
for arbitration hearings in the world.?? To meet growing demand, Maxwell Chambers is cur-
rently expanding its premises to triple its current size by refurbishing an adjacent building.”
The government has also founded a centre of excellence for the teaching of international
arbitration. The Singapore International Arbitration Academy (SIAA), under the direction
of the Centre for International Law at the National University of Singapore, provides expert
tuition on the theory and practice of international arbitration to practitioner students and
local and foreign government officials.

'S Legal Profession (International Services) Rules 2008 (Singapore), ss 14(3)—(4).

'® ‘Second Reading Speech on Legal Profession (Amendment) Bill 2008 by Law Minister K Shanmugam’,
Ministry of Law, 26 August 2008, para 8.1, available at <http://www.mlaw.gov.sg/news/parliamentary-
speeches-and-responses/second-reading-speech-on-legal-profession-amendment-bill-2008-by-law-minister-
k-shanmugam.html> (accessed 3 July 2017).
"7 Income Tax Act (Cap 134, 2008 Rev Ed) (Singapore), s 13V.
'8 Income Tax Act (Cap 134, 2008 Rev Ed) (Singapore), s 13(1)(r). The review date of 31 March 2020 was
ene =cane15 Singapore Budget to ensure that the relevance of the exemption is periodically reviewed.
, Part A.
20 The SIAC Secretariat moved from its former offices at the Singapore City Hall (where the Singapo
Academy of Law provided it with rooms rent free) to its current snarn $8in Maxwell Chambers on | jooet
2009. ‘July 2009 Quarterly Publication’ [2009] 3 Singapore Arbitrator 1.
21 Tenants at Maxwell Chambers include the ICC; the American Arbitration Association’s (AAA)
International Centre for Dispute Resolution (ICDR); ICSID; the PCA; the LCIA, the World Intellectual
Property Organisation (WIPO); the Singapore Chamber of Maritime Arbitration (SCMA); the Chartered
Institute of Arbitrators (CIArb); and the Singapore Institute of Arbitrators (SIArb) <http://www.maxwell-
chambers.com/partners/arbitration> (accessed 5 June 2017).
” Tom Feissner, ‘Singapore's Maxwell Chambers Among World's Leading Venues for International
Arbitration’, JDSupra Business Advisor (13 June 2015), available at <http://www.jdsupra.com/legalnews/
si pore-s-maxwell-chambers-among-66743/> (accessed 28 July 2016).
3 ‘Expansion Plan’ <http://www.maxwell-chambers.com/expansion-plan> (accessed 23 May 2017).

4
 A. Singapore as a Place for International Arbitration

2. Judicial support
In addition to government support, an arbitral venue needs a supportive judiciary in order
for it to thrive as a place for international arbitration. The courts at the place or seat of an
arbitration have the power to supervise (or in some instances interfere with) the arbitral pro-
cess. Among other things, the courts at the seat of arbitration can appoint arbitrators and
scrutinize, and potentially set-aside, tribunal decisions.’4 Thus, their attitude and efficiency
will bear upon a country’s ability to attract international arbitration to its shores.
There was a time when common law courts,”5 including those of Singapore,?¢ viewed arbi-
tration with suspicion.”” The Singapore courts today, however, have earned a reputation for
being pro-arbitration. In the words of the Singapore Court of Appeal, which sits at the apex
of the Singapore judiciary:
There was a time when arbitration was viewed disdainfully as an inferior process of justice.
‘Those days are now well behind us. An unequivocal judicial policy of facilitating and promot-
ing arbitration has firmly taken root in Singapore.?8
The Court of Appeal further described the prevailing attitude of the Singapore judiciary to
arbitration thus:
Courts should be slow to find reasons to assume jurisdiction over a matter that the parties have
agreed to refer to arbitration. It must also be remembered that the whole thrust of the IAA is
geared towards minimising court involvement in matters that the parties have agreed to sub-
mit to arbitration. Concurrent arbitration and court proceedings are to be avoided unless it
is for the purpose of lending curial assistance to the arbitral process. Jurisdictional challenges
must be dealt with promptly and firmly. If the courts are seen to be ready to entertain frivolous
jurisdictional challenges or exert a supervisory role over arbitration proceedings, this might
encourage parties to stall arbitration proceedings. This would, in turn, slow down arbitrations

24 See Part C of Ch 9 for a discussion of the importance of the seat of an arbitration.

25 See Vynior’s Case (1609) 77 Eng Rep 597 at [599], where Lord Coke considered that a party ‘might coun-
termand [an arbitration agreement], for a man cannot by his act make such authority, power, or warrant not
countermandable which is by the law and of its nature countermandable’. This doctrine of revocability was
reinforced in subsequent decisions such as Kill v Hollister (1746) 1 Wils KB 129, where contracts to arbitrate
were declared revocable because parties were considered not capable of ousting the courts of their jurisdiction to
decide disputes. The common law judges of England in the 17th and 18th centuries saw arbitration as a threat
to their powers and jurisdiction: BL Benson, ‘An Exploration of the Impact of Modern Arbitration Statutes on
the Development of Arbitration in the United States’, (1995) vol 11 (No 2) J Law Econ Org 479-501 at [483].
See also Eagle Star Insurance Co Ltd v Yuval Insurance Co Ltd (1978) 1 Lloyd’s Rep 357, where Lord Denning
MR noted at 360, ‘at one time the Courts used to be very jealous of arbitrations. They used to find all sorts of
reasons for interfering with arbitrators and their awards.’
26 The Singapore High Court in Cassa di Risparmio di Parma e Piacenza SpA v Rals International Pte Ltd
[2016] 1 SLR 79 noted at paras 130-131 that ‘the old judicial approach to arbitration agreements was one of
ility... an arbitration agreement was construed narrowly, layering fine semiotic distinctions upon minor
semantic differences; [and] a party was in effect permitted to resile unilaterally from a contractual obligation to
arbitrate once a dispute had actually arisen.’
27 Some common law courts arguably still do view arbitration with suspicion. See the 2014 Supreme Court
of India’s decision in ONGC Ltd v Western GECOInternatiLtd (2014) 9 SCC 263 where the court found
onal
that itwas within itsjurisdiction to modify thecontent of anaward, stating atpara 30 that ifthe arbitrators failed
to make an inference which should have been made, orhave made a prima facie wrong inference, ‘the adjudica-
tion even when made by an arbitral tribunal that enjoys considerable latitude and plays at the joints in making
awards will beopen tochallenge and may becast away or modified ... ’. This contradicts thewell-established
in international arbitration that courts should not hear challenges to the merits of anaward.
28 Tiong Very Sumito andorsv Antig Investment s 4 SLR(R) 732 (Singapore Cour
PteLtd[2009] t
ofAppeal)
para 28.
 Arbitration in Singapore

and increase costs all round. In short, the role of the court is now to support, and not to dis-
place, the arbitral process.?°

1.15 The Singapore Court of Appeal’s support for arbitration was tested in the 2009 case of /nsigma
Technology Co Ltd v Alstom Technology Ltd.3° The Court was asked to consider the enforceability
ofa hybrid arbitration agreement which provided that SIAC shall resolve any disputes in accord-
ance with the rules of another arbitral institution, the International Chamber of Commerce
(ICC). The facts of the case are these. Alstom commenced an arbitration at SIAC, which agreed
to administer the case as an ad hoc arbitration governed by the ICC Rules of Arbitration 1998
(ICC Rules (1998)). The SIAC Secretariat undertook to perform the role of the ICC Secretariat;
the SIAC Board of Directors agreed to act as the ICC Court; and the SIAC Registrar performed
the role of the ICC Secretary-General. After the ad hoc tribunal rendered an award upholding
its jurisdiction, Insigma applied to the High Court of Singapore to have the tribunal's decision
set aside. Insigma argued that SIAC did not have the authority to administer the case under the
ICC Rules as the arbitration clause was pathological and too uncertain to be enforced.3' The
High Court disagreed, as did the Court of Appeal. In doing so, the Court of Appeal enunciated a
principle that Singapore courts should ifpossible give effect to an apparent intention to arbitrate
even if that intention is expressed imperfectly.
Our second observation is that, where the parties have evinced a clear intention to settle any
dispute by arbitration, the court should give effect to such intention, even if certain aspects of
the agreement may be ambiguous, inconsistent, incomplete or lacking in certain particulars
so long as the arbitration can be carried out without prejudice to the rights of either parry and
so long as giving effect to such intention does not result in an arbitration that is not within the
contemplation of either party.??
The Court of Appeal held that an arbitration agreement should ‘not be interpreted restrict-
ively or strictly3and a ‘commercially logical and sensible construction is to be preferred over
another that is commercially illogical’.34 The Court of Appeal also rejected Insigma’s argu-
ment that it would not get ‘ICC’s hallmark of quality’ in a SIAC-administered arbitration.35
1.17 The ICC and the Chinese courts, however, demonstrated less enthusiasm for the parties’
hybrid arbitration clause and the flexibility shown by SIAC in agreeing to administer the
case,36

2° Tjong Very Sumito and ors v Antig Investments Pte Ltd para 29 (emphasis in original).
3° Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR(R) 936 (Singapore Court of Appeal).
meh ae made this argument despite having previously successfully argued that the ICC also did not have
jurisdiction.
2 Insigma Technology Co Ltd v Alstom Technology (n 31) para 31 (internal citation omitted).
8 Insigma Technology Co Ltd v Alstom Technology (n 31) para 32, citing E Gaillard and J Savage (eds),
Fouchard Gaillard Goldman on International Commercial Arbitration (Kluwer Law International, 1999) 260-1.
* Insigma Technology Co Ltd v Alstom Technology (n 31) para 33, citing Law Debenture Trust Corp ple v
Elektrim Finance BV [2005] 2 Lloyd’s Rep 755 para 39.
35 Insigma Technology Co Ltd v Alstom Technology (n 31) para 36.
© Subsequent to the Jnsigma Technology Co Ltd v Alstom Technology decision, the ICC proceeded to amend
its rules in 2012 in an attempt to prevent a similar situation from happening again: ICC Rules of Arbitration
2017 (ICC Rules (2017)), Art 1(2) provides that the ICC Court ‘is the only body authorize
d to administer
arbitrations under the Rules, including the scrutiny and approval of awards rendered in accordan
ce with the
Rules’. In early 2013, the Hangzhou Municipal Intermediate’s People’s Court of Zhejiang Province
refused
to enforce the Alstom v Insigma SIAC award (seeA Guide to the SIAC Arbitration Rules
(Ist edn, 2014), Ch 1,
n 25). In light of these developments, SIAC subsequently declined to administer an arbitrati
on governed
by what appeared to be an ICC hybrid clause, The clause provided for arbitration ‘in Singapore
, “Singapore
International Arbitration Centre” in accordance with the rules of the International Chamber
of Commerce’.

6
 A. Singapore as a lace for International Arbitration

[he pro-arbitration attitude of the Singapore courts can also be seen in the 2015 decision 1.18
of AQZ v ARA,?’ where the Singapore High Court declined to set aside a SIAC arbitration
award even though, on one view, it was inconsistent with the terms of the parties written
arbitration agreement. Specifically, Prakash Jheld that the SIAC President had the power
to depart from the parties’ agreement to have three arbitrators appointed when applying
the SIAC expedited procedures, for which the default position is that only a sole arbitrator
should be appointed. Notably, Her Honour derived support for that proposition from the
first edition of A Guide to the SIAC Arbitration Rules.38 The SIAC Rules were subsequently
amended in 2016 to provide expressly that the SIAC expedited procedures can apply not-
withstanding any contrary terms agreed by the parties.39
More recently, in the 2016 decision in Tomolugen Holdings Ltd and another v Silica Investors 1.19
Ltd and other appeals * the Court of Appeal confirmed, among other things, that a party can
have domestic court proceedings stayed merely by establishing on a prima facie basis that the
dispute is subject to a valid arbitration clause.‘
Specialist judges have been designated to hear international arbitration-related cases, 1.20
thus developing a depth of experience in those charged with supervising arbitrations in
Singapore.*? The current Chief Justice of Singapore, Sundaresh Menon SC, is himself a
former international arbitration practitioner, as well as a former member of the SIAC Board
of Directors and member of the Drafting Committee for the 2010 SIAC Rules. He contin-
ues to demonstrate a keen awareness of the needs of, and the challenges facing, the inter-
national arbitration community through his judgments and public statements.*?
3. Reputation for neutrality
Singapore is often chosen as a seat for international arbitration because of its well-earned repu- 1.21
tation for independence and neutrality. Transparency International’s Corruption Perception
Index 2016 ranks Singapore the least corrupt country in Asia and the seventh least corrupt in the
world.” Singapore is also an independent sovereign state, beholden to no other country. Users
of arbitration can thus expect the Singapore government and judiciary to not allow geo-political
concerns to affect the resolutions of international commercial disputes within its borders.*5

After receiving submissions from the parties, a Committee of the SIAC Board of Directors decided, pursuant to
Rule 25.1 of the 2010 SLAC Rules that it was not prima facie satisfied that there was an arbitration agreement
under the SIAC Rules. The SIAC Board expressed the view that the parties had appeared to agree to SIAC being
the venue of the arbitration, not the administering authority.
37 AQZ v ARA [2015] SGHC 49.
38 AQZ vARA (n 37) at paras 133 and 135. PrakashJ referred to para 7.10 of AGuide to the SIAC Arbitration
Rules (1st edn, 2014). See Ch 6, Parts C and D.
39 SIAC Rules (2016), Rule 5.3.
49 Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals (2016} 1 SLR 373.
4\ Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals (n 40) para 63.
42 The specialist arbitration judges at the time of writing are Justice Judith Prakash, Justice Belinda Ang,
Justice Quentin Loh, Justice Steven Chong, and Justice Vinodh Coomaraswamy: Supreme Court Singapore,
‘Structure of The Courts’, 16 October 2015, available at <http://www.supremecourt.gov.sg/about-us/the-
supreme-court/structure-of-the-courts> (accessed 18 July 2016).
43 § Menon SC, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’, ICCA
Congress 2012 Opening Plenary Session, Singapore, available at <http://www.arbitration-icca.org/media/0/
13398435632250/ags_opening_speech_icca_congress_2012.pdf> (accessed 18 July 2016).
44 Transparency International, ‘Corruption Perception Index 2016’, available at <https://www.transpat-
ency.org/news/feature/corruption_perceptions_index_2016#table> (accessed 1 June 20 17).
“ to the World Economic Forum's 2014/2015 Global Competitiveness Report, Singapore is
ranked highly, at number 23 in the world, for judicial independence. World Economic Forum, The Global

7
 Arbitration in Singapore
eee ee eee mene me RE IIc SE i

4. Stable and predictable laws

1.22 The top six places for international arbitration globally are a mixture of common law and civil
law jurisdictions.4® With its common law heritage fused with civil law arbitration principles,
Singapore is attractive as a place for arbitration to those which hail from either system of law.
1.23 The substantive law of Singapore bears the hallmarks of the English common law, reflecting
Singapore's history as a former British colony. Civil law principles, however, have also been
adopted in Singapore. As discussed in Part A of Chapter 2, a government committee tasked
with reforming Singapore’s arbitration laws in 1993 was concerned that continued reliance
on the common law principles embedded within the Arbitration Act 1950 (England) could
discourage users of international arbitration from a civil law background from choosing
Singapore as a place for international arbitration. This led to Singapore’s eventual adoption,
in 1994, of the 1985 UNCITRAL Model Law, which incorporates civil law features.*’

5. The attraction of Singapore for international businesses

1.24 Singapore’s attractiveness to international business and trade can be attributed to its location,
lack of red tape, its adoption of the English language, favourable tax regime, and techno-
logical advancements, each of which is considered below. These factors encourage inter-
national corporations to establish operations in Singapore. These companies are, in turn,
increasingly seeking to resolve cross-border commercial disputes by arbitration in Singapore.
1.25 Singapore’s success also owes much to its geographical position. Located just one degree
north of the equator, Singapore straddles the northern and southern hemispheres and links
the east to the west. Singapore’s location makes it an effective gateway to South East Asia,
Australia, and the Pacific Islands. It is easily accessible from all major cities in Asia.
1.26 Singapore prides itself on minimizing the administrative burdens of business. It is ranked
second in the 2017 World Bank’s Ease of Doing Business Index.*® It was ranked first in
this category from 2005 to 2015.9 It is also politically stable and has one of the lowest
crime rates in the world.*°

Competitiveness Report 2015-2016, available at <http://www3.weforum.org/docs/gcer/2015-2016/Global_

Competitiveness_Report_2015-2016.pdf> (accessed 15 July 2016). Other notable rankings include Hong
Kong (4th), the United Kingdom (10th) and Australia (13th).
“© According to the statistics of the ICC, the top six leading venues for ICC arbitration are Paris, London,
Geneva, Singapore, New York, and Zurich. ICC, ‘2015 Dispute Resolution Statistics’ (2016) ICC Dispute
Resolution Bulletin 19.
“” Astro Nusantra International BV v PT Ayunda Prima Mitra (2012] SGHC 212 (Singapore High Court)
para 84: “The Model Law is not a creature typical of the statutes emanating from common law jurisdictions; it
more properly resembles civil law drafting.’ See Part A of Ch 2.
“8 World Bank Group, ‘Doing Business 2016; Measuring Regulatory Quality and Efficiency’, available
at <http://www.doingbusiness.org/~/media/WBG/DoingBusiness/ Documents/Annual-Reports/English/
DB17-Full-Report.pdf> (accessed 11 October 2017).
“° Bloomberg, ‘Singapore Is Still The Easiest City To Do Business In, World Bank Says’, 28 October
2015, available at <http://www.bloomberg.com/news/articles/2015-10-27/singapore-tops-in-easiest-to-do-
business-as-china-india-ascend> (accessed 25 July 2016). Singapore was initially ranked first in the report
published in 2016 as well. However, its position was revised to third by the World Bank in light of certain
adjustments to its 2015 methodology and data. See World Bank, ‘Ease of Doing Business in Singapore’,
available at <http://www.doingbusiness.org/data/exploreeconomies/singapore> (accessed 10 October 2017).
%° Bureau of Diplomatic Security, United Sates Department of State, ‘Singapore 2015 Crime and
Report’,18 February 2015, available at <https://www.osac.gov/pages/ContentReportDetails. le
(accessed 18 July 2016). ithe yg eportDetails.aspx?cid=17128>
 A. Singapore as a Place for International Arbitration

All laws and regulations, as well as court judgments, are expressed in the English language,*' 1.27
the most commonly used language in international commerce.*2 Since 1987, the main
medium of instruction in Singapore schools has been English, with the government man-
dating that English be the primary language used at all levels of the school system.
By way of contrast, all laws, judicial decisions and even contracts in its largest neighbour, 1.28
Indonesia, must be expressed in Bahasa Indonesia.*4 Other notable comparisons among
Singapore's neighbours include Timor Leste, where English is an official working language,
but laws are primarily enacted in the Tetum language and/or Portuguese, and court decisions
are rendered in Portuguese.>> This makes it difficult for international business, and undercuts
both governments’ efforts to attract international arbitration.
Singapore also has low taxes. Corporate tax is set at a maximum rate of 17 per cent,5* per-_ 1.29
sonal income tax rises on a sliding scale to a maximum rate of 22 per cent,>” and there is no
capital gains tax.58
Tax incentives have been offered to various industries to attract their business to Singapore. An 1.30
offshore financial fund, for instance, which is managed by a Singapore-based fund manager,
can be exempted from Singapore corporate tax. If the financial fund comes onshore, it can take
advantage of Singapore's more than 70 bilateral taxation treaties and qualify for a 10 per cent
corporate tax rate for five years if it has at least three professionals based in Singapore.°? Similar

>! ‘The four official languages in the Singapore Constitution are English, Chinese, Malay, and Tamil. In rec-
ognition of the status of the Malay people as the indigenous community in Singapore, the national language of
Singapore is Bahasa Melayu (ie Malay); Constitution of the Republic of Singapore (1999 Reprint) Art 153A.
52 ‘The official language of the Singapore judiciary is English, with the exception of the Syariah Court,
which is responsible for the administration of Muslim Law, where the Malay language may be used: Sherida
Altehenger-Smith, Language Change via Language Planning: Some Theoretical and Empirical Aspects with a Focus
on Singapore (Buske 1990) at [105].
53. The Strait Times, ‘It’s English for all by 1987’ (22 December 1983) available at < http://eresources.nlb.
gov.sg/newspapers/ Digitised/Article/straitstimes19831222-1.2.2> (accessed 23 May 2017). Similarly, all
laws and regulations promulgated in Australia, Malaysia (the Malaysian language version of legislation is
authoritative unless otherwise prescribed by the Yang-di-Pertuan: National Language Act 1963/67 (Revised
1971) (Malaysia), section 6) and Myanmar must also be in English.
54 In 2015, the Indonesian Supreme Court held that under Art 31 of Indonesia’s Language Law (Law No 24/
2009) an agreement with an Indonesian party can be declared null and void ifnot in the Indonesian language when
signed: PT Bangun Karya Pratama Lestari v Nine AM Ltd (Judgment No 601 K/Pdt/2015 dated 31 August 2015).
55 The Timor Leste Constitution describes both Tetum and Portuguese as the official languages of Timor
Leste, and although Indonesian and English are prescribed as the working languages, Portuguese is used as the
main language of legislation and is the predominant language of the Timor Leste courts, which have excluded
legal professionals who are not fluent in the Portuguese language: Fernando Dias Simoes, ‘Law and Language in
Timor-Leste: Bridging the Divide’ Contemporary Southeast Asia (2015) vol 37 (3) 381-405.
% Inland Revenue of Singapore, ‘Corporate Tax Rates, Corporate Income Tax Rebates, Tax Exemption
Schemes and SME Cash Grant, 28 June 2016, available at <https://www.iras.gov.sg/irashome/Businesses/
Companies/Learning-the-basics-of-Corporate-Income-Tax/Corporate-Tax-Rates--Corporate-Income- Tax-
Rebates--Tax-Exemption-Schemes-and-SME-Cash-Grant/> (accessed 18 July 2016); KPMG, ‘Corporate Tax
Rate Tables’ (2016), available at <https://home.kpmg.com/xx/en/home/services/tax/tax-tools-and-resources/
tax-rates-online/corporate-tax-rates-table.html> (accessed 18 July 2016), providing a table and interactive tax
rate tools, which compare corporate tax rates by country and region.
57 Inland Revenue Authority of Singapore, “Tax Rates for Residents and Non-Residents’, available at <https://
www. iras.gov.sg/IRASHome/Individuals/ Foreigners/Working-out-your-taxes/Tax-Rates-for-Resident-and-
Non-Residents/> (accessed23 May 2017).
58 Monetary Authority of Singapore, ‘Tax’ (2016), available at <http://www.sgs.gov.sg/The-SGS-Market/
(accessed 18 July 2016).
: od serene serena Fund Management Incentives’, March 2014, available at <https://
www.pwe.com/sg/en/tax/assets/sgfundmgtincentives.pdf> (accessed 18 July 2016).

9
 Arbitration in Singapore
eee eee ern ede ES
tax breaks are available for a host of industries, including aircraft leasing, shipping, insurance,
and reinsurance, and commodity and oil trading. A 10 per cent rate of corporate tax is also
available for companies that shift their headquarters,® or their finance and treasury operations,
to Singapore.® Newly incorporated companies in all industries enjoy tax exemptions of up to
$$200,000 of annual income on their first three consecutive years of tax assessment.
‘31 Singapore is technologically advanced. It topped the World Economic Forum Global
Information Technology Report 2015’s rankings of Networked Readiness Index, reflecting
its capacity to leverage information technology advancements for increased competitive-
ness and well-being.® Singapore also has one of the highest broadband penetrations in the
world.® Admittedly, this is facilitated by Singapore’s land mass being only a little over 700
square kilometres in size.

6. Regional growth
1.32 Increased regional trade and investment has led to a corresponding increase in Asia-related
cross-border commercial and investment treaty disputes. A large proportion of such disputes
are being resolved in Singapore.
1.33 China’s resurgent economic power is well known. Its contribution to the global economy
increased from 4 per cent in 1990 to 15 per cent in 2012. In 2013, China accounted for
almost a third of the world’s growth,® and now has the world’s second largest economy.
India, Japan, and South Korea have also seen their economies grow significantly in recent
years. Moreover, the ten countries that make up ASEAN® now have a combined population
of approximately 630 million people and an aggregate economy worth US$2.4 trillion.
Average economic growth in recent years in the ASEAN countries has been 4.7 per cent per
annum, notwithstanding the global economic downturn.” Foreign direct investment (FDI)

60 Income Tax Act (Cap 134, 2008 Rev Ed) (Singapore), s 43C (insurance and reinsurance), s 43F (oil trad-
ing), s 43H (international commodity trading), s 431 (offshore leasing of machinery and plant), ss 43Y-43Z
(aircraft), and s 43ZF (shipping-related support service).
61 Income Tax Act (Cap 134, 2008 Rev Ed) (Singapore), s 43E.
62 Income Tax Act (Cap 134, 2008 Rev Ed) (Singapore), s 43G.
63 Inland Revenue of Singapore, ‘For Companies: Tax Exemption Scheme for New Start-Up Companies’,
29 March 2016, available at <https://www.iras.gov.sg/irashome/Businesses/Companies/Learning-the-basics-
of-Corporate-Income-Tax/Common- Tax-Reliefs- That-Help-Reduce-The-Tax-Bills/> (accessed 18 July 2016).
64 World Economic Forum, “The Global Information Technology Report 2015: ICTs for Inclusive Growth’
a 5); oy ae at <http://www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf> (accessed 15
July 2016).
6 In 2015, Singapore ranked second in mobile broadband penetration, fifth in the percentage of households
with internet access, and 28th in fixed broadband penetration worldwide. UNESCO and the International
Telecommunication Union, “The State of Broadband 2015’ (Broadband Commission, September 2015) 86—
90, available at <http://www.broadbandcommission.org/documents/reports/bb-annualreport2015.pdf>
(accessed 18 July 2016).
86 The Economist Online, ‘World GDP’, 9 October 2012, available at <http://www.economist.com/blogs/
gtaphicdetail/2012/10/focus-2> (accessed 5 June 2017).
°” The Wall Street Journal, “The U.S. May Not Be an Engine of the World Economy For Long’, 18 March
2016, available at <http://blogs.wsj.com/economics/2016/03/08/the-u-s-may-be-an-engine-of-the-world-
economy-but-perhaps-not-for-long/> (accessed 18 July 2016). ;
68 The ASEAN members are Singapore, Thailand, Malaysia, Indonesia, the Philippines, Vietnam,
Cambodia, Brunei, Burma (Myanmar), and Laos.
6° ASEAN, ‘ASEAN Statistical Leaflet - Selected Key Indicators 2016’, available at <http://asean.org/stor-
age/:
1."“05/ASEAN_Stats_Leaflet2016_web.pdf> (accessed 23 May 2016).
id.

10
 A. Singapore as a Place for International Arbitration

into the ten ASEAN countries has been rising steadily despite a decline in global FDI flows.’'
Looking farther south, Australia has had 26 years of uninterrupted economic growth and is
now the world’s 1 3th largest economy.?2

7. Cultural and legal links to its Asian neighbours

As already mentioned, the Asian region comprises many ofthe world’s fastest-growing econ- 1.34
omies. Singapore, with its strong cultural and legal links with its neighbours, is well placed
to benefit from this growth and the resulting commercial and sovereign disputes which inev-
itably flow from it.
For instance, an increasing number of India-related disputes are being resolved in Singapore. 1.35
While in 2000 only one case involving an Indian party was referred to SIAC, by 2015, 91
parties from India were named in new filings at SIAC.”3 This number further increased to
153 in 2016, making Indian parties the top foreign users of SIAC arbitration in 2016.74
Furthermore, the largest single claim submitted to SIAC in 2012, of $$1.50 billion, involved
Indian parties. At least one investment treaty arbitration against India has been seated in
Singapore.’5
Singapore and India share a common law tradition, as well as many cultural, familial, and com- 1.36
mercial links. This has allowed Singapore to benefit from the delays in India’s court system7®
and, in the words of the Supreme Court of India, the ‘delays, high cost, frequent and sometimes
unwarranted judicial interruptions” which characterise arbitration in that country. Indeed,
purely domestic disputes between Indian companies are now being referred to SIAC.
Another key reason why Singapore has traditionally been preferred for India-related arbitra- 1.37
tions as compared to other regional centres for arbitration is the ease with which a Singapore
award can be enforced in India. Section 44(b) of the Arbitration and Conciliation Act 1996
(India) provides that a foreign award is only enforceable in India ifit is rendered in a state that
is party to the New York Convention and the state is listed in the Official Gazette of India.
Singapore is one of the relatively few countries listed in the Official Gazette.”
Singapore also has significant cultural links to China, with a majority of the Singaporean 1.38
population descended from Chinese immigrants. In 2014, 41 companies from mainland

71 UNCTAD, ‘ASEAN Investment Report 2015: Infrastructure Investment and Connectivity’ (November
2015), available at <http://unctad.org/en/PublicationsLibrary/unctad_asean_air2015d1.pdf> (accessed 18
uly 2016).
- r > Trade and Investment Commission, “Why Australia: Benchmark Report 2017’ (2016) 3-5,
available at <https://www.austrade.gov.au/local-sites/singapore/news/why-australia-benchmark-report-2017>
(accessed 23 May 2017).
73 SIAC Annual Report (2015) 13, available at <http://siac.org.sg/images/stories/articles/annual_report/
SIAC_Annual_Report_2015.pdf> (accessed 5 June 2017); and SIAC, ‘2012 CEO's Annual Report’ (2012)
6, available at <http://www.siac.org.sg/images/stories/articles/annual_report/siac_annual_report_2012_new.
pdf (accessed 5 June 2017).
74 SIAC Annual Report (2016) 14, available at <http://siac.org.sg/images/stories/articles/annual_report/
SIAC_AR_2016_24pp_WEBversion_edited.pdf> (accessed 23 May 2017).
75. White Industries Australia Ltd v Republic ofIndia (Final Award, 30 November 2011). |
76 Indian courts reportedly face a backlog of over 30 million cases which, bysome estimates, could take
to 400 years toclear. An average claim repor upwards of 15 years to befinally determine
tedly
takes Ajay
Vd.
Kumar, ‘Judicial Delays in India: Causes and Remedies’ (2012) 4 JLPG 16.
77 Union ofIndia v M/S Singh Builders Syndicate (2009) 4 SCC 523 (Supreme Court of India) para 10.
78 China (inclu din
Hong Kong g was adde
and Macau) dlistin March 2012.
to the

11
 Arbitration in Singapore
SS
than
China were named as parties in SIAC arbitrations,”* the highest of any country other
Singapore. In 2015, the number of cases filed by parties from China increased to 46,® and
increased again to 76 Chinese companies named in SIAC arbitrations the following year.*'
1.39 Companies from Indonesia also frequently agree to arbitrate their disputes in Singapore,
with some of the most prominent cases involving Indonesian parties." Singapore is also
attracting considerable amounts of arbitration work from South Korean parties.®?

8. Conduct of investment treaty arbitrations in Singapore

1.40 Many companies structure (or restructure) their investments through Singapore, in_part,
because of its extensive investment treaty programme. This in turn has led to investors seek-
ing recourse for their investment treaty disputes through international arbitration. At the
time of writing, there are no publicly known cases in which Singapore has been named as
a respondent in an investment treaty arbitration.™ There are, however, at least four known
instances of a Singaporean investor commencing an investment arbitration against a foreign
State.8°

79 SIAC Annual Report (2014) 10. This includes 19 parent companies from China, whose subsidiaries were
parties to an arbitration at SIAC But incorporated elsewhere.
80 SIAC Annual Report (2015) 13 (n 73).
81 SIAC Annual Report (2016) 14 (n 74).
82 For instance, an arbitral tribunal awarded US$250 million in damages in favour of Malaysia's Astro
Nusantra International against Indonesia's Lippo Group, represented in the arbitration by its subsidiary PT
First Media. The case, PT First Media TBK v Astro Nusantara International BV [2014] 1 SLR 372 (Singapore
Court of Appeal), is discussed in Ch 2. There were 24 parties from Indonesia in cases submitted to SIAC in
2015. In 2016 this number increased to 38.
83 SIAC established a branch office in Seoul in 2012. In 2015, South Korean parties contributed the third
most number of case filings at SIAC, with 34 cases; SIAC Annual Report 2015 at [13]. In 2016 this number
increased to 38, making South Korean parties the fourth most frequent users of SIAC arbitration: SIAC Annual
Report (2016), 14.
84 UNCTAD, Database for Investor-State Dispute Settlement Cases, available at <http://investmentpoli-
cyhub.unctad.org/ISDS/FilterByCountry> (accessed 10 October 2017); MJ Moser and JChoong (eds), Asia
Arbitration Handbook (OUP 2011) para 15.405.
85 In Yaung Chi Oo Trading Pte Ltd v Government of the Union ofMyanmar (ASEAN ID Case No ARB/
01/1), the Singapore incorporated claimant commenced arbitration pursuant to the ASEAN Agreement for
the Promotion and Protection of Investments of 1987 and the 1998 Framework Agreement for the ASEAN
Investment Area under the ICSID Additional Facility Arbitration Rules. In an award on jurisdiction issued on
31 March 2003, the tribunal held that it lacked jurisdiction over the dispute and the matter concluded. In Cemex
Asia Holdings Ltd v Indonesia (ICSID Case No ARB/04/3), the Singaporean claimant commenced ICSID arbi-
tration for a claim of US$400 million in damages against the Government of Indonesia in relation to a cement
operation in Indonesia. The claimant alleged violations of its minority investment rights, expropriation of its
assets, and breaches of the ASEAN Agreement for the Promotion and Protection of Investments of 1987. The
arbitration proceedings were withdrawn following a settlement between the parties. Moser and Choong, Asia
Arbitration Handbook (n 55) paras 15.406—15.407. In Oleovest
PteLtd v Republic ofIndonesia (1CSID Case No
ARB/16/26), the claimant commenced ICSID arbitration pursuant to the Singapore-Indonesia BIT in rela-
tion to the construction of a palm oil and oleochemical complex in Sumatra. The details of the nature of the
claim and amount in dispute are not publicly available. ‘Palm Oil Company Sees BIT Claim Registered Against
Indonesia at ICSID’ ([AReporter, 11 August 2016), available at <https://www.iareporter.com/articles/palm-
oil-company-registers-bit-claim-against-indonesia-at-icsid/> (accessed 10 October 2017). Most recently, in
Surfeit Harvest v Taiwan Province ofChina (UNCITRAL—PCA), the claimant commenced UNCITRAL arbi-
tration under the Singapore-Taiwan Province of China EPA (2013) for claims arising out of the host govern-
ment’ alleged interference with Taishin Financial's management rights in Chang Hwa Bank, which allegedly
resulted in losses for the claimant as a shareholder of Taishin Financial. The details of the nature of the claim
and amount in dispute are not publicly available. Investment Policy Hub, ‘Surfeit Harvest v Taiwan Province of
China’, available at <http://investmentpolicyhub.unctad.org/ISDS/Details/8 12> (accessed 11 October 2017).

12
 A. Singapore as a Place for International Arbitration

Singapore has agreed some 70 bilateral and multilateral investment treaties and free trade 1.41
agreements (FTAs),% including the Association of South East Asian Nations (ASEAN)-
Australia- New Zealand FTA, the ASEAN-China Investment Agreement, the ASEAN-Korea
FTA, and the ASEAN Comprehensive Investment Agreement.®”

A large number of Singapore’s investment treaties (and indeed those of other countries) allow 1.42
the investor and the State hosting the investment to agree to have disputes administered by
a commercial arbitral institution such as SIAC.*® SIAC released in 2016 a set of arbitration
rules specifically tailored for disputes between states and investors.8? The SIAC Investment
Arbitration Rules are discussed in Chapter 19 of this book.
Singapore (although not SIAC) has hosted a number of investment treaty arbitrations. 1.43
The ad hoc investment treaty arbitration between White Industries Australia Ltd and
the Republic of India was seated in Singapore.% While the Singapore courts thus had
supervisory powers over the arbitration, a three-day witness hearing was held in London.
Conversely, in Deutsche Bank AG v Democratic Socialist Republic of Sri Lanka,*" the legal seat
of the arbitration was Washington, DC, but the hearings on jurisdiction and merits were
held at Maxwell Chambers in Singapore. At least two other ICSID cases have had hearings
in Singapore.
In Philip Morris Asia Ltd v Commonwealth ofAustralia,® the suitability of Singapore as the 1.44
legal seat of an investor-state arbitration was contested by Australia. The tribunal, however,
dismissed Australia’s preference for London as the seat of the arbitration in a ten-page rea-
soned decision. The tribunal summarized its position thus:
Regarding the suitability of the law, both Singapore and London fulfil the requirements of
a place for a BIT arbitration. The arbitration law as well as the judiciary, should it become
involved, are well equipped in both States to deal with the present dispute. The considerations
discussed by the Parties regarding the possibility of counsel to appear before the respect-
ive courts? do not, in the view of the Tribunal, reveal relevant differences between the two
places.”
The arbitral tribunal continued: 1.45
Of the factors listed in the Ethyl decision [ie Ethyl Corporation v Canada where a tribunal
considered five factors for determining the suitability of a place for an investment treaty arbi-
tration], the location of the subject matter in dispute and proximity of evidence, as well as

86 United Nations Conference on Trade and Development (UNCTAD), “World Investment Report
Reforming International Investment Governance’, June 2015, available at <http://unctad.org/en/
PublicationsLibrary/wir2015_en.pdf> (accessed 18 July 2016).
8? Singapore was one of the 12 Asia Pacific states which signed the Trans-Pacific Partnership (TPP)
Agreement in February 2016, which encompasses approximately 40 per cent of global gross domestic product,
but the agreement did not enter into force after the United States withdrew its support.
88 eg ASEAN Comprehensive Investment Agreement, Art 33(f); ASEAN-China Investment Agreement,
Art 14(4)(e).
” ne Ie Rules have since 1 April 2013 expressly provided that a dispute arising under an investment
treaty can be administered bySIAC: SIAC Rules (2013), Rule 3.1(d); SLAC Rules (2016), Rule 3.1(d).
9 White Industries Australia Ltd v Republic ofIndia (ONCITRAL, Final Award, 30 November 2011).
91 ICSID Case NoARB/09/02, Final Award, 31 October 2012, para 120.
2 i poms yee a — fete ts
8 regarding foreign to appear in Singapore courts on an ad hoc basis.
ie pormiebota dnap Commonwealth ofAustralia (PCA Case No 2012-12, Procedural Order No 3
Rega Place of Arbitration,
therdin g 26 October 2012) para 38.

13
 Arbitration in Singapore

convenience and travel distances of the parties and costs of support services needed would
seem to speak in favour of Singapore over London, as they may not only be relevant for hear-
ings of this Tribunal, but also for subsequent disputes before the domestic courts at the place
of arbitration should such disputes arise. Finally, the PCA, which is administering the present
arbitration, has concluded a Host Country Agreement with Singapore, but not with the UK
or an institution in London.”

1.46 As indicated in the preceding extract, Singapore has in place a Host Country Agreement
with the Permanent Court of Arbitration (PCA), which allows PCA-administered pro-
ceedings to be conducted in Singapore under similar conditions to those guaranteed
under the PCA’s Headquarters Agreement with the Kingdom of The Netherlands. This
includes the provision by Singapore of facilities (such as hearing and meeting rooms)
and services for PCA-administered proceedings, as well as the privileges and immuni-
ties from suit that are afforded by Singapore law to arbitrators.% In mid-2017 a further
agreement was reached for Singapore to host a permanent PCA office. The International
Centre for Settlement of Investment Disputes (ICSID) has also entered into agreements
with both SIAC and Maxwell Chambers to facilitate the conduct of ICSID arbitrations
in Singapore.%”

B. The Rise of SIAC

1.47 Singapore's reputation as a place for arbitration of course is in no small part due to the rise of
SIAC in the consciousness of users of international arbitration.
1.48 In the twenty-six years since SIAC first began operations in 1991, it has quickly risen to
become a leading arbitral institution. After a humble beginning with only three cases filed
in its first year, by the end of the 1990s, SIAC was reporting close to 100 new cases per
year.°® The number of new cases then dropped off in the early 2000s, before picking up
again following the release of the 2007 SIAC Rules. Following the introduction of innova-
tive procedures for the appointment of emergency arbitrators and expedited proceedings
in 2010 and the adoption of a Court structure in 2013, a new benchmark was set by SIAC
in 2015 with 271 new cases handled, a 22 per cent increase from 2014.22 With no sign of
the growth slowing down, SIAC reported a new record of 343 new case filings in 2016, a
27 per cent increase from its 2015 numbers. A total of 2,941 cases have been referred to
SIAC in 26 years.

tpi
asec sages
% Philip Morris Asia Ltd v Commonwealth ofAustralia (n 92) para 40.
%° PCA, ‘Host Country Agreements’, available at <http://www.pca-cpa.org/showpage.asp?pag_id=1276>
(accessed 7 July 2017). The other PCA host countries are Argentina, Costa Rica, Lebanon
, Mauritius, South
Africa, India, and Chile.
%” ICSID, ‘Other Facilities’, available at <https://icsid.worldbank.org/en/Pages/services/Ot
her-Facilities.
aspx> (accessed 7 July 2017).
°8 SIAC remarkably reported having received 89 new cases in both 1998 and 1999,
99 SIAC Annual Report 2015 at [12].
‘
100 SIAC Annual Report (2016) 14. SIAC’s teported caseload is as
follows: 1991 (3 cases); 1992 (13
cases); 1993 (14 cases)
; 1994 (28 cases); 1995 (42 cases); 1996 (52 cases); 1997 (58 cases); 1998
1999 (89 cases); 2000 (58 cases); 2001 (64 cases); 2002 (64 cases) (89 cases);
; 2003 (64 cases); 2004 (78 cases); 2005
(74 cases); 2006 (90 cases); 2007 (86 cases); 2008 (99 cases); 2009
(160 cases); 2010 (198 cases); 2011
oe 2012 (235 cases); 2013 (259 cases); 2014 (222 cases); and
2015 (271 cases), and 2016 (343
cases),

14
 B. The Rise of SIAC

400

350 343

300
259
250 235

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
Figure 1.1 Total number of new cases handled by SIAC from 2005 to 2016
Figures taken from SIAC website, available at <http://www.siac.org.sg/2014-11-03-13-33-43/facts-figures/statistics/
64-why-siac> (accessed 22 May 2017).

Figure 1.1 shows the number of new cases ‘handled’'®' by SIAC each year between 2005 and 1.49
2016.'°
Table 1.1 records the number of new cases administered by leading arbitral institutions inthe 1.50
period 2005-2016." It reveals that SIAC is the fifth most popular arbitral institution for
the administration of arbitrations.
The amounts in dispute in SIAC arbitrations have also increased significantly in recent years. 1.51
The average amount claimed per dispute has increased from $$6.82 million in 2010 to
$$55.63 million in 2016.' The total value of all cases filed with SIAC has also increased to
$$17.13 billion in 2016.'° The highest sum in dispute for a single administered SIAC arbi-
tration is $3.47 billion.’

101 STAC uses the term ‘handled’ rather than ‘administered’ as the statistics include (a) cases administered
by SIAC under its own rules; (b) cases in which SIAC acted as the appointing authority under Singapore
arbitration legislation or upon an agreement of the parties; and (c) arbitrations governed by the UNCITRAL
Arbitration Rules (the 1976 and 2010 versions) (UNCITRAL Arbitration Rules) which SIAC supported
through the provision of financial services or as an appointing authority. For a discussion of SIAC’s role in ad
hoc cases, see Ch 17.
102 STAC, ‘Total Number of New Cases Handled by SIAC (2005-2015) (2015), available at <http://www.
siac.org.sg/2014-1 1-03-13-33-43/facts-figures/statistics> (accessed 15 July 2016).
103 Incontrast, the figures reported in thepreceding paragraph are for thenumber by SIAC
ofcases ‘handled’
for the same period. . ;
104 STAC, ‘2011 CEO’s Annual Report’ (2011) 5, available at <http://www.siac.org.sg/images/stories/arti-
cles/annual_report/SIAC_Annual_Report_201 1 .pdf> (accessed 24 October 2014).
105 STAG, ‘Annual Report 2016 (n 74) 14.
106 Tbid.

15
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 C. Key Developments since the First Edition of the Book

This success in part is attributable to SIAC’s global reach. The 343 new cases ‘handled’ by
1.52
SIAC in 2016 involved parties from 56 different countries,'” with 80 per cent of the new
Cases being international in nature, and 42 per cent not involving Singaporean parties
'%
.
Beyond Singapore, which understandably is the largest contributor of cases to SIAC, the top
toreign users of SIAC in 2016 were parties from India (153 parties), China (76 parties), the
United States (42 parties), Indonesia (38 parties), South Korea (38 parties), Australia (36
parties), Malaysia (28 parties), Hong Kong (27 parties), the United Kingdom (27 parties),
and the Netherlands (19 parties) .'%

C. Key Developments since the First Edition of the Book

This edition of A Guide to the SIAC Arbitration Rules has of course been motivated by the 1.53
release of the 6th edition of the SIAC Rules and the first edition of the SIAC Investment
Arbitration Rules. As explained in Chapter 3, part E, the key changes to SIAC practice
embodied within the 2016 SIAC Rules include the following:
* the introduction of provisions regulating multi-contract and multi-party arbitrations (see
Chapter 7);
* the development of SIAC rules regarding joinder of third parties to an arbitration and
the introduction of a mechanism to allow the consolidation of related arbitrations (see
Chapter 7);
* aclarification of the rules regarding expedited procedures (see Chapter 6); and
* a mechanism for the early dismissal of manifestly flawed claims and defences (see
Chapter 11).
The SIAC Investment Arbitration Rules came into force on 1 January 2017 and are consid- 1.54
ered in Chapter 19.
In 2014, SIAC and the Singapore International Mediation Centre (SIMC) launched the 1.55
Arb-Med-Arb Protocol, which allows a party to commence arbitration under the auspices of
SIAC, and then proceed to mediation under the SIMC (see Chapter 3, Part H).""°
SIAC has also established a network of liaison offices. SIAC established offices in Mumbai 1.56
and Seoul in 2013 and a representative office in Shanghai in 2016. In 2017, SIAC estab-
lished a second representative office in India in the International Financial Services Centre
in Gujarat International Finance Tec-City, Gujarat.'"' The primary objectives of the overseas
offices are to facilitate the dissemination of information on, and the promotion of arbitration
at, SIAC and in Singapore."'? SIAC arbitrations are not administered in the liaison offices,
but only in Singapore.

107 Ibid.
108 Ibid.
109 Ibid.
110 SIMC, ‘What is Arb-Med-Arb?’, 2014, available at <http://simc.com.sg/arb-med-arb/> (accessed 30
November 2017) and “Why Arb-Med-Arb?’, available at <http://simc.com.sg/arb-med-arb/#page_tab2>
(accessed 18 July 2016). |
111 “SIAC Opens its Second Representative Office in Indian in GIFT’, 10 August 2017, available at
<http://siac.org.sg/69-siac-news/542-siac-opens-its-second-representative-office-in-india-in-gift> (accessed
September 2017).
at OR pct TR sei tas heSIACarcheconcn tn Singapore
with key players forinternational arbitration in India, China, and South Korea; to obtain feedback on SIAC’s
17
 Arbitration in Singapore
eesti
css
1.57 SIAC has also signed a Memorandum of Agreement with the Gujarat International
Finance TecCity Company Limited (GIFTCL) and GIFT SEZ Limited (GIFT SEZ) in
Gujarat, India."!3 SIAC is currently developing the protocols and staffing for its operations
in Gujarat. In addition, SIAC signed a memorandum of understanding in March 2016
with the Authority of the Special Administrative Region of Oe-Cusse Ambeno (SAROA)
and Special Zones for Social Market Economy (ZEESM) Timor-Leste (SAROA-ZEESM
TL). SIAC will provide dispute resolution services in relation to contracts between SAROA-
ZEESM TL and private sector firms, investors, and service providers.

D. Structure and Content of A Guide to the SIAC Arbitration Rules

1.58 Having thus explained in this chapter the reasons for the success of Singapore as a place for
arbitration, the legal framework for arbitration in Singapore is analysed in Chapter 2. An
overview of SIAC arbitration, including a flowchart of the different stages of SIAC arbitra-
tion, is provided in Chapter 3. An explanation of the roles of the different organs within
SIAC, including the SIAC President, the Court of Arbitration of SIAC (‘the SIAC Court’),
the Registrar, and the Board of Directors, can be found in Chapter 4.
1.59 The heart of the book is Chapters 5 to 16, which contain a rule-by-rule examination of the
2016 SIAC Rules (with comparisons made to the 2010 and 2013 SIAC Rules, as well as
those of other leading arbitral institutions). The analysis is presented on a thematic basis,
starting with the commencement of an arbitration and working through the phases of a typ-
ical case up to and including the rendering of an award and the determination of costs. This
edition also includes new chapters on multiple contracts, consolidation, joinder and inter-
vention, as well as a chapter on early dismissal of claims and defences. The services that SIAC
provides in support of ad hoc arbitration are discussed in Chapter 17, while Chapter 18
considers the rules applicable to SIAC domestic arbitrations. Chapter 19 concludes with a
discussion of the new SIAC Investment Rules.
1.60 The following documents are appended to the book:
Appendix 1: 2016 SIAC Rules
Appendix 2: SIAC Investment Arbitration Rules
Appendix 3: SIAC Code of Ethics for an Arbitrator (2015)
Appendix 4: Singapore International Arbitration Act (Chapter 143A)

services as an arbitral institution; and to exchange ideas on topics of interest within the local arbitration com-
munity and topical issues in international arbitration.
"13 Under the MOA, SIAC will establish a representative office in the IFSC-GIFT, which will be instru-
mental in promoting SIAC’s world-class international arbitration services to Indian users; SIAC, ‘SIAC Signs
gee “a i pea with GIFT” (3 June 2016), available at <http://www.siac.org.sg/images/stories/
press_release 20Signs%20Memorandum%200f%20Agreement% 20with%20GIFT _3%20
2016.pdf> (assessed 19 July 2016). ss maed

18
 2
LEGAL FRAMEWORK FOR ARBITRATION
IN SINGAPORE

A. The Singapore Legislative Framework 2. Rights of challenge against a Singapore

for Arbitration 2.02 award 2.86
1. The history of arbitration regulation in 3. General attitude of the Singapore courts
Singapore 2.02 to set-aside applications 2.92
2. ThelAA 2.07 4. Analysis of specific grounds for
3. TheAA 2.45 challenging an award 2.100
4. TheICSID Convention 2.50 5. Enforcement of a Singapore award in
B. Singapore Court Supervision and Singapore af) 2113
PES see 2.52 6. Enforcement of a New York Convention
1. The judicial hierarchy 2.52 award mine?
2. Court supervision and assistance 2.59 7. Shae espana Mork: >aAt
nvention awar
C. Challenge and Enforcement of Awards 8. Enforcement of an ICSID award in
in Singapore 2.81 Singapore VX)
1. Rights of challenge against rulings on
jurisdiction 2.82

Parties to a SIAC arbitration may choose to seat their arbitration anywhere in the world." 2.01
Bangalore, Beijing, Dubai, Jakarta, Hong Kong, London, Michigan, Mumbai, New Delhi,
Perth (Australia), Port Louis (Mauritius), Port Moresby (Papua New Guinea), Shanghai, and
Tokyo, among other places, have all been chosen by parties as the seat, or legal home, for a
SIAC arbitration.” Singapore, however, is of course the most popular seat for SIAC arbitra-
tion.? Thus, this chapter addresses the legal framework for the conduct of arbitration and
the enforcement of awards in Singapore. It begins with a look at the legislative framework
for arbitration in Singapore in part A. There follows in part B a consideration of the way in
which Singapore courts lend their support to, and exercise supervisory powers over, arbitra-
tions seated in Singapore. The chapter concludes with an analysis of the means by which
awards can be challenged and enforced in Singapore.

' SIAC Rules (2016), Rule 21.1.

2 For a discussion on the significance of the legal seat in international arbitration, see Ch 9, paras [9.69-
9.74]. In particular, Indian parties have shown a preference for arbitrations conducted under the SIAC Rules
with an Indian seat.
3 Singapore was the default seat for SIAC arbitrations in the absence of anagreement ofthe parties under
the 2007, 2010, and 2013 SIAC Rules. Under the 2016 SIAC Rules, however, Rule 21.1 provides that inthe
absence ofanagreement of the parties the tribunal shall determine the seat ofthearbitration having regard to
all checircumstof ances
the case.
19
 Legal Framework for Arbitration in Singapore

A. The Singapore Legislative Framework for Arbitration

1. The history of arbitration regulation in Singapore
2.02 Singapore was founded in 1819 by the British as part of the Straits Settlements, comprising
Penang, Malacca (both in modern-day Malaysia), and Singapore. Arbitration in the Straits
Settlements was initially governed by the Arbitration Ordinance XIII of 1809, which was based
on the English Arbitration Act of 1698. As early as 1889, there is a record of the Supreme Court
of the Straits Settlements in Singapore refusing an application to set aside an arbitral award.‘
2.03 The Arbitration Ordinance of 1809 was ultimately replaced by the Arbitration Ordinance
of 1890 (which was based on the English Arbitration Act of 1889),° and subsequently the
Arbitration Ordinance of 1953 (which was modelled on the Arbitration Act 1950 (England
and Wales)).® The Arbitration Ordinance of 1953 was renamed the Singapore Arbitration
Act 1953 (Act 14 of 1953) when Singapore gained its independence from Malaysia in 1965.’
The Arbitration Act 1953 was subsequently superseded by the Singapore Arbitration Act of
1985.8 These early arbitration laws did not distinguish between international and domestic
arbitrations. All were treated the same.
2.04 This changed in 1994 with the enactment of the Singapore International Arbitration Act
(IAA). The IAA, as its full name indicates, was enacted to govern the conduct of international
commercial arbitration in Singapore. It did so by adopting (and modifying) the 1985
UNCITRAL Model Law on International Commercial Arbitration (the 1985 UNCITRAL
Model Law). The IAA also gives effect to the 1958 New York Convention on the Recognition
and Enforcement of Foreign Arbitral Awards (the New York Convention). The regulation of
domestic and international arbitration through different instruments was motivated in part
by a desire to ensure that domestic arbitrations would continue to be supervised closely by
the courts, while allowing greater party and tribunal autonomy in international cases. The
1993 government law reform committee which recommended the enactment of the IAA in
1994 noted that:
... agreater degree of curial supervision and intervention is... generally considered to be more
appropriate in the case of domestic arbitration ... both for the development of domestic com-
mercial and legal practice, and for a closer supervision of decisions which may affect weaker
domestic parties.°
2.05 Having separated the two regimes in 1994, a subsequent law reform committee established
in 2001 decided to ‘narrow, as far as possible, the differences between the international and

SUES EEEEEEEEnnneemmer
* Ponachee U]B Westerhout and The East India Company (1889) 11 SL] 82.
> Lum Chang Building Contractors Pte Ltd v Anderson Land Pte Ltd(2000] 1 SLR(R) 648 (Singapore
Court
of Appeal) para 22.
° Lum Chang Building Contractors v Anderson Land (n 5) para 24;; M Pillay, y, “The The Singapo
Si itrati
re Arbitrat
Regime and the UNCITRAL Model Law, Arb Intl Vol 20 No 4 355-86, 356. Sl 7
” Lum Chang Building Contractors vAnderson Land (n 5) para 24; Pillay, “The Si ie
and the UNCITRAL Model Law’ (n 6) 356, P y, The Singapore Arbitration Regime
ache
8 PT First Media TBK v Astro Nusantara International BV [2014] ] 1 SLR 372 (Si
(Singapore Court of Appeal)
* Law Reform Committee, Sub-Committee on Review of Arbitration Laws, Report (1993)
paras 10-13.
20
 A. the Singapore Legislative Framework for Arbitration

domestic statutes so that Singapore will have a harmonious and business friendly regime’ ."°
It was decided, however, to still keep the legislative regimes separate so as to retain a greater
degree of curial supervision over domestic arbitration.'’ The 2001 law reform committee's
recommendations were eventually enacted in a new Arbitration Act, which came into effect
on | March 2002 (and is referred to herein as the AA).

Thus, arbitration in Singapore today is regulated primarily by two statutes: the IAA, which 2.06
governs international arbitrations, and the AA, which governs domestic arbitrations in
Singapore, with parties at liberty to opt into or out of either regime.'? A third statute, the
Arbitration (International Investment Disputes) Act (Cap 11, 2012 Rev Ed) (Singapore),
implements the 1966 Convention on the Settlement of Investment Disputes between States
and Nationals of Other States (ICSID Convention). Each piece of legislation is considered
in turn.

2. The LAA
In this section the scope of the IAA (a copy of which is appended to this book at Appendix 2.07
4) is first addressed, followed by a consideration of the 1985 UNCITRAL Model Law and
the New York Convention, both of which are given legislative effect by the IAA."
a. Scope ofthe IAA
The LAA applies to international arbitrations seated in Singapore and the enforcement of 2.08
foreign awards in Singapore.
An arbitration is considered ‘international’ when: (a) at least one party has its place of busi- 2.09
ness outside Singapore;'* (b) the place of arbitration is situated outside the state in which
the parties have their places of business;'> (c) either the place where a substantial part of the
contract is to be performed or the place with which the subject of the dispute is most closely
connected is outside the state in which the parties have their places of business;'® or (d) the
parties have agreed that the subject matter of the arbitration agreement relates to more than
one country.'”
The IAA will also apply to ‘an arbitration which is not an international arbitration’ if the 2.10
parties agree in writing that the [AA or the 1985 UNCITRAL Model Law will apply to the
arbitration.'* In other words, parties to a domestic arbitration can opt in to the IAA.

10 Law Reformand Revision Division of the Attorney-General’s Chambers (Singapore), Review ofArbitration
Laws, LRRD No 3/2001, vii.
"1 Law Reform and Revision Division of the Attorney-General’s Chambers (Singapore), Review ofArbitration
Laws, LRRD No 3/2001, vii.
12 Parties to a domestic arbitration can opt in to the IAA: s 5(1), IAA. Conversely, parties to an international
arbitration held in Singapore may expressly agree to opt out of the IAA, leaving their arbitration to be subject
to the AA: s 15(1), IAA.
13, TAA, s (3)(1), and Parts II and III.
4 TAA, s 5(2)(a). 1 .
15 [AA,s5(2)(b)(i), adopted from theUnited Nations Commission on International TradeLaw (UNCITRAL)
Model Law on International Commercial Arbitration 1985 (1985 UNCITRAL Model Law), Art 1(3)(b)(i).
16 IAA, s 5(2)(b)(ii), adopted from 1985 UNCITRAL Model Law, Art 1(3)(b)(ii).
17 IAA, s 5(2)(c), adopted from 1985 UNCITRAL Model Law, Art 1(3)(c).
18 TAA, s5(1).

21
 Legal Framework for Arbitration in Singapore
a
2.11 Conversely, parties to an international arbitration held in Singapore may expressly agree to
opt out of the IAA, leaving their arbitration to be subject to the AA.'9
2.12 The adoption ofarbitration rules such as the SIAC Rules is no longer in itself regarded as an
ouster of the IAA or the 1985 UNCITRAL Model Law.?° The SIAC Rules and other terms
of any arbitration agreement will be given effect by Singapore law to the extent they are not
inconsistent with provisions of the LAA or the AA from which the parties cannot derogate.?'
b. The New York Convention
2.13 The New York Convention establishes a legal framework for the recognition and enforce-
ment of international arbitration agreements and arbitral awards in contracting states. It is
one of the most successful international legal instruments of all time with at least 156 states
having agreed to abide by its terms. The New York Convention has facilitated the success of
international arbitration observed in recent decades by requiring the courts of states which
have ratified the treaty to (a) give effect to arbitration agreements and (b) recognize and
enforce the decisions of arbitrators.”
2.14 Specifically, Art II(3) of the New York Convention requires the court ofa contracting state to
stay or dismiss legal proceedings which conflict with an arbitration agreement unless it finds
that the agreement is null and void, inoperative, or incapable of being performed.
2.15 As for the decisions of arbitrators, Art III of the New York Convention requires each con-
tracting state to recognize and enforce foreign arbitral awards as they would domestic arbi-
tral awards. Art V enumerates limited grounds on which a court of a Contracting State
may refuse to recognize or enforce a foreign award. These are essentially limited to a lack
of jurisdiction, breaches of procedural fairness, or violations of public policy. A full appeal
or review of the legal merits of an arbitral decision is not permitted under the New York
Convention.
2.16 Singapore ratified the New York Convention on 21 August 1986 and gave it legislative force
pursuant to Part III of the IAA. It did so subject to a ‘reciprocity reservation’,?? whereby
Singapore is only obliged to apply the New York Convention to arbitral awards rendered
in other states which have ratified the Convention. The recognition and enforcement in

'9 TAA, s 15(1).

20 TAA, ss 15(2) and 15A. In John Holland Pty Ltd v Toyo Engineering Corp (Japan) [2001] 2 SLR 262
(Singapore High Court), the Singapore High Court held that the parties’ choice of the ICC Rules was an impli-
cit ouster of the 1985 UNCITRAL Model Law. The successful party in that case relied on Coop International
Pte Ltd v Ebel SA (1998] 1 SLR(R) 615 (Singapore High Court), which stated in dicta that the LAA, Part II or
the 1985 UNCITRAL Model Law could be excluded either expressly or by implication. The Singapore legis-
lature subsequently amended IAA, s 15 effective from 1 November 2001, to require any opting out of the [AA
to - done expressly.
IAA, s 15A(1); AA, s 58. Section 15A ofthe LAA was introduced in response to Dermaj Properties Sdn
Bhd v Premium Properties Sdn Bhd (2002) 1 SLR(R) 492 (Singapore High Court), in which detagenet High
Court stated in dicta that, if parties adopt a set of arbitration rules which contains procedures different from
those contemplated by the 1985 UNCITRAL Model Law, those arbitration rules would be regarded as incom-
patible with the 1985 UNCITRAL Model Law and would be excluded entirely.
22 The ability to enforce arbitration agreements and awards around the world according to standard criteria
is one of the key attractions of international arbitration as compared to court litigation.
23 New York Convention, Art I(3) provides that any contracting state may declare that it will apply the
Convention to only those arbitral awards made in the territory of another contracting state and/or to only those
dispute s arising out
nationaof
llegal
law relatio
of the nships
contra (wheth
cting er contractual or otherwise) ey which are recognized as commer-
state.
cial under the

22
 A. the Singapore Legislative Framework
for Arbitration

Singapore of awards rendered in states which are not party to the New York Convention is
still possible and is considered in part C of this chapter.
ce. The 1985 UNCITRAL Model Law
The 1985 UNCITRAL Model Law is intended to provide a template for the development of 2.17
national arbitration laws based on uniform rules designed to facilitate consistency in the regu-
lation of international arbitration around the world.” It encompasses provisions relating to the
formation of arbitration agreements, the composition of arbitral tribunals, the jurisdiction of
tribunals, the conduct of arbitral proceedings, the making of awards, and the recognition and
enforcement of awards.
Two fundamental doctrines of arbitration codified in the 1985 UNCITRAL Model Law are 2.18
the principle of competence-competence, which refers to a tribunal’s ability to rule on its own
jurisdiction,” and the principle of separability, which prescribes that an arbitration agreement
can exist and take effect independently of other terms in a contract.?6 Both are considered in
Chapter 10.
As explained in paragraph [2.02], Singapore’s early laws on arbitration were modelled on 2.19
English arbitration statutes, reflecting Singapore’s colonial past. Singapore, however, has in
recent times moved in a more international direction. Thus, a government committee estab-
lished in 1993 to reform Singapore arbitration law noted that England and Wales had rejected
the 1985 UNCITRAL Model Law, choosing instead to develop their own arbitration law, albeit
inspired in part by the 1985 UNCITRAL Model Law.?’ The Singapore government committee
members were:

... unanimously of the view that Singapore can ill-afford to adopt a similar stance. If Singapore
aims to be an international centre it must adopt a world view of international arbitration. The
Committee therefore recommends the adoption of the Model Law.”8
The Singapore government committee was concerned that the continued reliance on English 2.20
arbitration law might close off a significant (and increasing) slice of the international arbitra-
tion market which was familiar with the civil law approach to international arbitration. It was
considered that with:
... her multicultural and multi-lingual society, Singapore was in a unique position to attract par-
ties from both Asia and Europe. The exclusion of civil law concepts and processes might have the
unintended effect of deterring parties from civil law jurisdictions who are used to conducting
arbitrations in accordance with civil law processes.”

24 J Honnold, “The United Nations Commission on International Trade Law: Mission and Methods’ (1979)
vol 272-3 AmJ Comp L201.
Law, Art 16(1).
Model AL
25 UNCITR
26 UNCITR Model ALLaw, Art 16(1).
27 The United Kingdom Arbitration Act of 1996 contains various provisions inspired by the 1985
UNCITRAL Model Law, including s 30 which permits a tribunal to rule onits own jurisdiction.
28 Law Reform Committe e (n 9) para 8 (emphasis inoriginal removed).
Report (1993)
29 C Lim, “The Developmental Life Cycle of International Arbitration Legislation—Singapore LAA Case
Study’ (2011) 7 AIAJ 1, 7. The author was a member ofthe1993 Singapore government law reform committee
that recommen the adoption
ded of the 1985 UNCITRAL Model Law.

23
 Legal Framework for Arbitration in Singapore
i as
o-
2.21 One such civil law concept foreign to English common law at the time,?° but now incorp
(ie
rated into Singapore law,3" is the ability of atribunal to decide a matter ex aequo et bono
based on equitable standards of justice) or as an amiable compositeur (ie as a friendly decision-
maker not subject to strict rules of law), ifauthorized to do so by the parties.*?
2.22 It was reported to the Singapore parliament during the second reading of the International
Arbitration Bill on 31 October 1994 that the relative success (at that time) of the HKIAC
as compared to SIAC was in part due to Hong Kong's adoption of the 1985 UNCITRAL
Model Law in 1990.33 The 1985 UNCITRAL Model Law, it was assumed, would ‘appeal
to international businessmen and lawyers, especially those from continental Europe, China,
Indonesia, Japan and Vietnam who may be unfamiliar with English concepts of arbitra-
tion’.4 The government believed that the adoption of the 1985 UNCITRAL Model Law
would thus help to achieve its ambition of SIAC becoming the leading regional centre for
international arbitration.?5 The significance of this move has been described by the Singapore
Court of Appeal thus:
_.. the Model Law, which was crafted in such a way as to be acceptable both to common and
civil law systems, was to herald a paradigm shift in the Singapore arbitral framework which
had until then been guided by the English arbitration regime.*®
d. Modifications to the 1985 UNCITRAL Model Law
2.23 As noted earlier in this chapter, the Singapore government adopted the 1985 UNCITRAL
Model Law in the IAA in order to internationalize the practice of arbitration in Singapore,
move it away from its English colonial roots, and make it attractive to users of common law
and civil law systems alike.
2.24 The Model Law, however, is not a complete code for arbitration. It does not address a range
of issues that arise in international arbitration, including the interpretation of arbitration
agreements, arbitrability,3” duties and liabilities of arbitrators, costs, interest, the conduct
of multi-party proceedings, confidentiality, arbitrator immunity; and the consolidation of
related proceedings, to name a few. These gaps can be filled by an agreement of the parties,
the applicable arbitration rules, and statute.
2.25 Any agreement reached by the parties on the conduct of their arbitration including their
choice of arbitration rules, however, cannot derogate from any mandatory provisions of
the IAA, the AA, or the 1985 UNCITRAL Model Law. The difficulty is that none of these

30 Before 1996, the Arbitration Act 1950 (UK) did not have provisions on ex aequo et bono or amiable
compositeur. These are now implicitly accepted under the Arbitration Act 1996 (UK), s 46(1)(b) which permits
the tribunal to decide a dispute ‘in accordance with such other considerations as are agreed by [the parties] or
determined by the tribunal’.
31 1985 UNCITRAL Model Law, Art 28(3); LAA, s 3(1).
22 These concepts are discussed in Ch 12.
33 International Arbitration Bill (Bill No 14/94), Second Reading, Associate Professor Ho Peng Kee
(Parliamentary Secretary to the Minister for Law), 31 October 1994.
* International Arbitration Bill (Bill No 14/94), Second Reading (n 33). The preamble to the 1985
UNCITRAL Model Law records the aim of UNCITRAL to harmonize the laws applicable to international
arbitration in a manner that is acceptable to states with different legal, social, and economic systems.
35 International Arbitration Bill (Bill No 14/94), Second Reading (n 33).
36 PT First Media v Astro Nusantara (n 8) (Singapore Court of Appeal) para 54 (emphasis in original).
7 ‘The concept of arbitrability describes the inquiry made into whether a dispute is capable of being settled
by arbitration. See Ch 10 for a discussion on this issue.

24
 A. The Singapore Legislative Framework
for Arbitration

sources of law expressly prescribes the provisions from which the parties cannot derogate.*®
The 1993 government drafting committee for the LAA preferred to leave the determination
of whether a provision is mandatory to be decided on a case-by-case basis.32 While articles
of the 1985 UNCITRAL Model Law and sections of the IAA which are qualified by the
expression ‘unless otherwise agreed by the parties’ are clearly non-mandatory, it does not
necessarily follow that the absence of such language makes a provision mandatory. The draft-
ing committee noted that there is a ‘grey area in respect of provisions [in the [AA and 1985
UNCITRAL Model Law] where there is no express language making reference to the parties’
contrary agreement but which may not have been intended to be mandatory’.°The drafting
history of the 1985 UNCITRAL Model Law also reveals a reluctance on the part of those
involved in its drafting to list all mandatory provisions.*'
As the 1985 UNCITRAL Model Law was never intended to cover all aspects of arbitration, 2.26
‘national arbitration laws play an important complementary function ’.4? Thus, the drafters of
the LAA and subsequent Singapore parliaments have amended, supplemented, and in some
instances departed from the 1985 UNCITRAL Model Law in a number of key respects.
First, whereas the 1985 UNCITRAL Model Law applies only to an ‘international commer- 2.27
cial arbitration’,*?parties to a domestic dispute in Singapore can, as already mentioned, opt
into the IAA.“

Second, section 3(1) of the IAA expressly excludes Chapter VIII of the 1985 UNCITRAL 2.28
Model Law (which encompasses Arts 35 and 36) from having the ‘force of law’ in Singapore.“
Art 35 of the UNCITRAL Model Law provides that an arbitral award shall be recognized
as binding irrespective of the country in which it is rendered; whereas Art 36 prescribes
the grounds for refusing recognition or enforcement of an award. The exclusion of these
provisions from the IAA is of no consequence for foreign awards (ie ones rendered out-
side Singapore) as Part III of the IAA gives effect to the New York Convention (which, as
explained earlier in this chapter, provides a means by which foreign arbitration awards can
be recognized and enforced in Singapore).
In contrast, the exclusion of Art 36 of the UNCITRAL Model Law from the IAA was held by 2.29
the Singapore High Court in Astro Nusantara International BV v PT Ayunda Prima Mitra*®®
to have great significance for international awards rendered in Singapore (and thus not sub-
ject to the New York Convention). The Singapore Court of Appeal, however, subsequently
overturned that decision and clarified that the terms of Art 36 of the UNCITRAL Model

38 See the discussion on mandatory laws in Ch 5.

39 Law Reform and Revision Division, Attorney-General’s Chambers Singapore, ‘Proposed Amendment to
the International Arbitration Act on Rules of Arbitration (Report)’, LRRD 11/2002, 14-15.
40 ‘Proposed Amendment to the International Arbitration Act on Rules of Arbitration (Report)’ (n 39) 15,
citing the example of IAA, s 12(1) of the LAA which sets out the powers of the tribunal to make interim orders.
Ass 12(1) makes no reference to the parties’ contrary intention, it is not clear if the section is intended to be
mandatory or non-mandatory.
41 H Holtzmann and J Neuhaus, A Guide to the UNCITRAL Model Law on International Commercial
Arbitration: Legislative History and Commentary (Kluwer Law and Taxation Publishers, 1989) 1120.
42 PT First Media v Astro Nusantara (n 8) para 52.
43 1985 UNCITRAL Model Law, Art 1(1) (emphasis added).
“ IAA, s 5(1).
4 IAA, s 3(1).
46 [2013] 1 SLR 636 (Singapore High Court).
25
 Legal Framework for Arbitration in Singapore
s
vxsccsuiccccoce ts easide
Law continue to apply to awards rendered in Singapore on the grounds that Art 36 reflects
Singapore common law.*’
2.30 Given the importance of the Court of Appeal’s ruling to gaining an understanding of how
an award rendered in Singapore can be challenged or denied recognition and enforcement,
it is appropriate that the Astro case be considered in more detail. The respondents to five
‘domestic international awards’,*8which ordered them to pay a significant amount of dam-
ages to the claimants, failed to exercise their right under Singapore law to apply to have the
awards set aside within the time limits mandated by the 1985 UNCITRAL Model Law;
namely within three months of the awards being issued pursuant to Art 34.“° Nevertheless,
the respondents sought to defend an application by the successful claimants to have the
Singapore High Court recognize and enforce the awards. The question was whether they
could launch such a defence after having failed to apply to set aside the awards within the
prescribed time limit.
2.31 The Singapore High Court held that they could not. Belinda AngJ held that the exclusion of
Chapter VIII of the 1985 UNCITRAL Model Law from the IAA by section 3(1) meant that
unless a set-aside application was successfully made within the prescribed time limits under
Art 16 or 34 of the 1985 UNCITRAL Model Law, the award ‘is recognised as final and bind-
ing, and is not subject to any further grounds for refusal of enforcement’.°° The High Court
rejected the contention that there should be a ‘double control’ for domestic international
awards as there is for foreign awards whereby a losing party has a choice as to whether to
bring a set-aside application within the aforementioned prescribed time limits and/or seek
to resist any application by its opponent to enforce the award. The High Court noted that
such a double control is inconsistent with Singapore’s chosen path of ‘less curial intervention
[contrasting it to the English position], in line with the objectives of the Model Law’.5' On
that basis, the High Court rejected the respondents’ attempt to resist enforcement of the five
awards in Singapore.*
2.32 The High Court's decision, however, was reversed by the Singapore Court of Appeal, which
held that, notwithstanding the express exclusion of Chapter VIII of the 1985 UNCITRAL
Model Law from the IAA, ‘the best way to give effect to the philosophy of the Model Law
would be to recognise that the same grounds for resisting enforcement under Art 36(1) of
the Model Law will be equally available under s 19 of the LAA’.53 Section 19 of the IAA pro-
vides that an award ‘may’ be enforced by leave of the High Court in the same manner as a
judgment or order of the Court. After considering the legislative history of the [AA and AA,
as well as the 1953 England Arbitration Act to which section 19 of the [AA could be traced,
the Court of Appeal concluded that the Singapore Parliament ‘intended to retain for the

” PT First Media v Astro Nusantara (n 8).

“8 The Court of Appeal uses the expression ‘domestic international award’ to describe an award rendered in
Singapore in a case involving at least one international party.
“° For a discussion on the rights of challenge against an award in Singapore, see part C of this chapter.
5° Astro Nusantara v Ayunda Prima Mitra (n 46) para 74 (emphasis in the original).
>! Astro Nusantara v Ayunda Prima Mitra (n 46) pata 112 (emphasis in the original).
a ry oe a rb Mitra (n 46) para 94.
rst Media v Astro Nusantara (n 8) para 143(d). The Court of determined at
Chapter VIII of the 1985 UNCITRAL Model Law had been excluded from maa as the Sighbthaiietdien
did not wish to undermine Singapore's reciprocity reservation to the application of the New York Convention
to Singapore. See para [2.117].

26
 A. the Singapore Legislative Framework
for Arbitration

courts the power to refuse enforcement of domestic international awards under s 19, even
if the award could have been but was not attacked by an active remedy.>* While English
law was central to the Court of Appeal’s conclusion that the courts retained the discretion
to refuse recognition of adomestic international award, the Court of Appeal relied on the
1985 UNCITRAL Model Law for inspiration as to how the Court’s discretion should be
exercised. In particular, the Court of Appeal concluded that the power of the High Court
under section 19 of the IAA to refuse to recognize or enforce an award should be exercised
‘in a manner which is compatible with the overarching philosophy of the Model Law on the
enforcement of awards’.

Thus, as a matter of Singapore law: ‘Parties who elect not to challenge the tribunal’s pre- 2.33
liminary ruling on its jurisdiction are not thereby precluded from relying on their passive
remedy to resist recognition and enforcement on the grounds set out in Art 36(1) [of the
1985 UNCITRAL Model Law].’%* In other words, what had been expressly excluded by
Parliament pursuant to section 3(1) of the LAA (specifically, Art 36 of the 1985 UNCITRAL
Model Law), the Singapore Court of Appeal held still applies to domestic international
awards by virtue of the common law.>”
Besides the exclusion of Arts 35 and 36, the IAA modifies the 1985 UNCITRAL Model 2.34
Law in a number of other respects. The aforementioned 1993 law reform committee recom-
mended that the powers of the arbitral tribunal be significantly increased as compared to
those allowed under Singapore’s Arbitration Act of 1985 and the 1985 UNCITRAL Model
Law. After consulting with members of the SIAC Secretariat, the law reform committee rec-
ommended,* and the Singapore parliament approved, that tribunals be given the power
to, among other things: order the preservation, interim custody, or sale of property; issue
orders for securing the amount in dispute; order the production of documents; make orders
to ensure that an award is not rendered ineffectual by the dissipation of assets; grant interim
injunctions and other interim measures; and award interest.
Some of these powers prescribed by the IAA were already available under the 1991 SIAC 2.35
Rules,®° while others were added to the 1997 SIAC Rules following the introduction of
the [AA.®!
The 1993 law reform committee also noted that English law did not, at least at that point, 2.36
allow a tribunal to proceed inquisitorially, and that the 1985 UNCITRAL Model Law is

54 PT First Media v Astro Nusantara (n 8) para 47.

55 PT First Media v Astro Nusantara (n 8) para 50.
56 PT First Media v Astro Nusantara (n 8) para 132.
57 This has the attraction of ensuring that parties to an arbitration seated in Singapore have the same right
to resist enforcement of an award in Singapore as they would if the arbitration were seated outside Singapore.
58 Law Reform Committee, Report (1993) (n 9) para 31.
59 IAA, ss 12 and 20. The tribunal’s power to grant interim relief is also derived from the 1985 UNCITRAL
Model Law, Art 17.
69 SIAC Rules (1991), Rules 24(h) (preservation of property) and 24(i) (production of documents).
28.5
(award-
61 SIAC Rules (1997), Rules 25(j) (interim relief), 25(1) (preventing dissipation of assets), and
ing ofinterest). Theaddit powers ofthetribunal are now prescribedinRules 27 and 32.9 ofthe 2016 SIAC
ional
Rules (see Chs 12 and 14). ie
62 The Arbitration Act 1996 (UK) , now perm
s 34(2)(g) tribunal to ‘take the initiativeinascertaining
theits
the facts and the law’.

27
 Legal Framework for Arbitration in Singapore
ne eee

silent on the point.® The decision was taken to adopt the civil law approach of allowing a
tribunal to be inquisitorial if considered appropriate, unless the parties otherwise agree.
. . . 64
. . . . . . .

2.37 Further, the 1985 UNCITRAL Model Law does not provide a means for the enforcement
of interim orders or directions,® a gap which is now filled by section 12(6) of the IAA and
section 28(4) of the AA.
2.38 Confidentiality is also not addressed in the 1985 UNCITRAL Model Law. While the SIAC
Rules provide that an arbitration shall be confidential, sections 22 and 23 of the IAA seek
to ensure that any obligations of confidentiality are respected in court proceedings relating
to an arbitration (see paragraph [2.68]).
2.39 The 1985 UNCITRAL Model Law is also silent on the extent to which arbitrators are
immune from prosecution. Section 25 of the LAA provides that an arbitrator shall not be
liable for negligence or any mistake in law, fact, or procedure. The 1993 law reform com-
mittee that recommended the adoption of the IAA was of the view, however, that ‘such
immunity should not extend to cases where an arbitrator has wilfully misconducted himself
or inordinately caused delay in the arbitration’.* The IAA is thus silent on whether an arbi-
trator is protected in such circumstances.
2.40 Provisions for the conduct of acombined mediation-arbitration procedure (so-called ‘med-arb’
or ‘arb-med-arb’) have also been adopted in Singapore, with the SIAC President given the role
of appointing authority should the parties fail to agree a mediator or conciliator.® The IAA
allows the parties to agree that a mediator or conciliator may subsequently act as an arbitrator
should the parties fail to reach a negotiated settlement.®? Conversely, the parties may agree that
an arbitrator in an existing arbitration may change hats and act as mediator or conciliator.”°
2.41 The IAA also broadens the grounds for setting aside an award beyond those prescribed in Art
34(2) of the 1985 UNCITRAL Model Law. In addition to the grounds provided under the
1985 UNCITRAL Model Law, an award may be challenged under the IAA on the basis that
it was induced or affected by fraud or corruption,”' or because of a breach of natural justice
which prejudices the rights of any party.”

6? Law Reform Committee, Report (1993) (n 9) para 59.

64 TAA, s 12(3); see also SIAC Rules (2016), Rules 19.1 and 19.4.
6° Law Reform Committee, Report (1993) (n 9) paras 32-35.
66 SIAC Rules (2016), Rule 39.
67 Law Reform Committee, Report (1993) (n 9) para 58. For a discussion on SIAC Rules (2016), Rule 38,
see Ch 16, paras [16.02-16.10].
68 TAA, s 16(1). Previously, this role was performed by the SIAC Chairman.
69 IAA, s 16(3).
70 TAA, s 17(1). See Ch 3 for a discussion of arb-med-arb under the SIAC and SIMC rules.
| IAA, s 24(a). This modification to the 1985 UNCITRAL Model Law was arguably unnecessary as the pub-
lic policy ground for setting aside an award under Art 34(2)(b) (ii) of the 1985 UNCITRAL Model Law encom-
passes corruption, bribery, and fraud: PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA [2007] 1 SLR(R) 597
(Singapore Court of Appeal) para 59, citing Holtzmann and Neuhaus, UNCITRAL Model Law on International
Commercial Arbitration (n 41) 914. In Beijing Sinozonto Mining Investment Co Ltd v Goldenray Consortium
(Singapore) Pte Ltd [2014] 1 SLR 814 (Singapore High Court), the High Court observed, at para 41, that:
..» ifa party bribes the tribunal into giving a decision in its favour, or does anything to corrupt, subvert
or compromise the professional integrity, impartiality and independence of the tribunal, that would
certainly shock the conscience and be clearly injurious to the public good or wholly offensive to the
ordinary reasonably and fully informed member of the public, and amount to a breach of public policy.
See also ReLandau, Toby Thomas QC [2016] SGHC 258 at [66-68].
72 TAA, s 24(b).

28
 A. The Singapore Legislative Framework for Arbitration

Finally, the following minor modifications to the 1985 UNCITRAL Model Law have been 2.42
made in the LAA:

(a) im the absence of an agreement of the parties, one arbitrator shall be appointed,’
rather than three, which is the default position under the 1985 UNCITRAL Model
Law;”4 and
(b) the parties, rather than the party-nominated arbitrators, are first given the opportunity
under the IAA to nominate the presiding arbitrator for three-person tribunals.”5

e. Amendments to the [AA

Following its promulgation in 1994, the [AA was amended in 2001,76 2002,7” 2005,78 2.43
2009,” 2012,% and 2016.*' The most notable amendments include: a provision in 2009
empowering the Singapore High Court to award interim relief in support of foreign
arbitrations;* the extension in 2012 of the definition of an ‘arbitration agreement’ to
include agreements ‘recorded in any form’ whether or not the arbitration agreement or
contract has been concluded orally, by conduct, or by any other means;® a provision in
2012 for curial review of negative jurisdictional rulings;® a term authorizing tribunals
to order the payment of post-award interest;85 and the transfer of statutory powers from
the SIAC Chairman to the SIAC President following the creation of the SIAC Court
in 2013.%
The 2006 amendments to the 1985 UNCITRAL Model Law (referred to herein as the 2.44
2006 UNCITRAL Model Law) have not been adopted in full in Singapore, although
the IAA has been adopted to reflect some of the amendments to the UNCITRAL
Model Law.®”

73 IAA, s 9. In contrast, Rule 9.1 of the SLAC Rules provides that a sole arbitrator shall be appointed unless
otherwise agreed by the parties, although the SIAC Registrar can decide that there should be a three-person
tribunal if warranted by the circumstances of the case. See Ch 8.
74 1985 UNCITRAL Model Law, Art 10(2).
75 [AA,s9A. In contrast, Art 11(3) of the 1985 UNCITRAL Model Law provides that the party-nominated
arbitrators shall appoint the third arbitrator.
76 International Arbitration (Amendment) Act 2001 (No 38 of 2001) (Singapore).
77 International Arbitration (Amendment) Act 2002 (No 28 of 2002) (Singapore).
78 Statutes (Miscellaneous Amendments) (No 2) Act 2005 (No 42 of 2005) (Singapore).
79 International Arbitration (Amendment) Act 2009 (No 26 of 2009) (Singapore).
80 International Arbitration (Amendment) Act 2012 (No 12 of 2012) (Singapore); Foreign Limitations
Periods Act (Cap 111A, 2012 Original Ed) (Singapore).
81 Statutes (Miscellaneous Amendments) Act 2016 (No 16 of 2016) (Singapore).
82 [AA,s 12A. This amendment was considered necessary following a Singapore Court of Appeal ruling in
2007 to the effect that s 12 of the old IAA did not give a Singapore court the power to grant interim relief in
aid of a foreign arbitration: Swift-Fortune Ltd v Magnifica Marine SA [2007] 1 SLR(R) 629 (Singapore Court
of Appeal). The amendment also brought the IAA into line with Art 17(H)(1) of the 2006 amendments to the
1985 UNCITRAL Model Law.
8 IAA, s 2A(4).
4 TAA, s 10(3)(b).
s in 2013 to allow tribuna
was amended
85 IAA, s 20; AA, s 35(2). Rule 28.7 of the SIAC Rule grant
to ls
post-award interest. See Ch 14, [14.36-14.38].
aa fected Cescelnaares Acimiidaadlt Ate2016,0 2 end11.
ed Specifically, the definition ofanarbitration agreement under Singapore law was expanded in 2012
through the adopt of Option 1 of Art 7 of the 2006 amendments
ion to the 1985 UNCITRAL Model Law
(2006 UNCITRAL Model Law) inthe IAA, s 2A, and the Arbitration Act (Cap 10, 2002 Rev Ed) (Singapore)

29
 Legal Framework for Arbitration in Singapore
Eee
i
3. TheAA
As explained earlier in this chapter, domestic arbitration in Singapore is currently regulated
by the Arbitration Act enacted in 2001 (Act 37 of 2001) and revised in 2002 (the AA). Its
predecessors include the Arbitration Ordinance XIII of 1809, the Arbitration Ordinance of
1890, the Arbitration Ordinance of 1953 (which subsequently became the Arbitration Act
of 1953), and the Arbitration Act of 1985.
a. Scope of the AA
2.45 As noted in paragraph [2.10], while the AA is designed to regulate domestic arbitrations
held in Singapore, parties to a domestic dispute may agree in writing to opt into the [AA.*
Conversely, parties to an international arbitration with Singapore as the place of arbitration
may agree that the AA will apply (or that the 1985 UNCITRAL Model Law or the IAA does
not apply, which will have the same effect).®°
2.46 In the absence of any opting in or out by the parties, the AA will operate as the default regime
for all arbitrations seated in Singapore which fall outside the scope of the IAA (ie domestic
.2°
arbitrations)
b. Terms of the AA
2.47 Consistent with the objective of harmonizing the two legislative regimes as much as possible,
many of the provisions of the AA are based on the 1985 UNCITRAL Model Law. The draft-
ers of the latest iteration of the AA also drew inspiration from the Arbitration Act 1996 (UK)
and the Arbitration Act 1996 (New Zealand).°'

2.48 The major differences between the AA and the IAA reflect the Singapore legislature’s inten-
tion to provide greater protection for parties to a domestic arbitration primarily through
heightened court supervision (and to foster the ‘development of domestic commercial and
legal practice’).°* Thus:
(a) aSingapore court is obliged under the terms of the IAA to stay court proceedings relat-
ing to a matter that is the subject of a valid arbitration agreement,? whereas such a stay
is discretionary under the AA;%
(b) under the AA, a point of law may be referred in certain circumstances to the courts fora
preliminary ruling,9> whereas no such procedure exists under the IAA;

(AA), s 4. In addition, as already mentioned, s 12A was added to the IAA in 2009 to empower the Singapore
courts to grant interim relief in support of foreign arbitrations.
88 TAA, s 5(1).
89 TAA, s 15(1).
°° AA, s 3: “This Act shall apply to any arbitration where the place of arbitration is Singapore and where the
International Arbitration Act (Cap 143A), Part II does not apply to that arbitration.’
*! Law Reform and Revision Division of the Attorney-General’s Chambers (Singapore), Review of Arbitration
Laws, LRRD No 3/2001 (n 10) para 1.2. See para {2.03}.
% Lim, “The Developmental Life Cycle’ (n 29) 8-11.
.

93 IAA, s 6; 1985 UNCITRAL Model Law, Art 8.

% AA, s6.
9 AA,s 45.

30
 A. The Singapore Legislative Framework
forArbitration

(c) similarly, the AA allows a party to appeal against an award on a question of law,9* which
of course cannot be done under the [AA;9”
(d) the AA allows the court to extend contractual time limits for the commencement of
an arbitration if the barring of a claim would cause ‘undue hardship’, whereas no such
express power is prescribed by the [AA;%
(e) under the AA, the tribunal may issue an award dismissing a claim if there has been inor-
dinate and inexcusable delay on the part of the claimant, whereas the IAA is silent on
the matter;
(f) party costs and tribunal fees are taxable by the Registrar of the Supreme Court for arbi-
trations governed by the AA,'° whereas the SIAC Registrar performs that role for cases
subject to the I[AA;"°' and
(g) unless the parties agree otherwise,’ the AA," unlike the IAA," does not expressly
grant arbicral tribunals the power to make orders:
(i) to secure the amount in dispute; and
(ii) to ensure that any award which may be made in the arbitral proceedings is not ren-
dered ineffectual by the dissipation of assets by a party.

c. Amendments to the AA
The AA was amended in 2003,'% 2005,'°* 2009,'°7 2012,'°8 and 2016.1 The amendments 2.49
largely track the amendments made to the IAA described in paragraph [2.43], with the
exception that the Singapore High Court is empowered to grant interim relief in aid of for-
eign arbitrations under the [AA,""° but not under the AA."

4. The ICSID Convention

The International Centre for Settlement of Investment Disputes (ICSID) was established 2.50
in 1965 pursuant to the ICSID Convention of the same year for the purposes of resolving
foreign investment disputes between contracting states and nationals of other contracting

96 AA,s49(2) provides that a party to an arbitration governed by the AA can appeal questions of law, subject
to any agreement of the parties precluding such an appeal. Rule 32.11 of the SIAC Rules is likely to represent
such an agreement.
97 IAA, s 3(1); 1985 UNCITRAL Model Law, Art 34(1).
98 AA,s 10.
99 AA, s 29(3).
100 AA, ss 39(1) and 40(2).
101 JAA, ss 21(1) and 21(2).
102 AA, s 28(1). The choice of the SIAC Rules would constitute such an agreement given the terms of Rules
27(i), 27(k), and 30.1 of the SIAC Rules (2016).
103 AA, s 28(2).
104 TAA, s 12(1).
105 Statutes (Miscellaneous Amendments) Act 2003 (No 9 of 2003) (Singapore).
106 Statutes (Miscellaneous Amendments) (No 2) Act 2005 (No 42 of 2005) (Singapore).
107 International Arbitration (Amendment) Act 2009 (No 26 of 2009) (Singapore).
108 International Arbitration (Amendment) Act 2012 (No 12 of 2012) (Singapore); Foreign Limitations
Periods Act 2012 (Cap 111A, 2012 Original Ed) (Singapore).
AA was amended to
109 Statutes (Miscellaneous Amendments) Act 2016 (No 16 of 2016) (Singapore). The
references to the ‘Chairman of SIAC’ to ‘President of the Court of Arbitration’.
110 TAA, s 12A(1)(b).
"1 AA, s 31; cfIAA, s12A.

31
 Legal Framework for Arbitration in Singapore
ee nn A e TS

states. At the time of writing, there are 153 states which are party to the ICSID Convention
ICSID
and under its terms agree to recognize and enforce arbitral awards rendered under the
Convention.

2.51 Singapore is one of them, having signed the ICSID Convention on 2 July 1968. The ICSID
Convention entered into force in Singapore on 13 November 1968 pursuant to the terms
of the Arbitration (International Investment Disputes) Act (Act 18 of 1968, followed by a
revised edition in 2012). The Act provides that upon registration with the Singapore High
Court, an ICSID award will have the same effect, with respect to the pecuniary obligations
it imposes, as a judgment of the High Court."

B. Singapore Court Supervision and Assistance

1. The judicial hierarchy
2.52 Singapore operates a two-tier court system. The State Courts form the first tier and com-
prise the District Courts, Magistrates’ Courts, specialized courts,''? and the Small Claims
Tribunal.'* The Supreme Court constitutes the second tier and comprises the Court of
Appeal and the High Court.''5 The two tiers are demonstrated graphically in Figure 2.1.
?He The Court of Appeal sits at the apex of the Singapore judiciary, having become the final court
of appeal on 8 April 1994 when appeals to the Judicial Committee of the Privy Council
in London were abolished.''® The Court of Appeal hears appeals against decisions of the
High Court.
2.54 The High Court hears both criminal and civil cases as a court of first instance. The High
Court also hears appeals from the decisions of the State Courts.""”
2.55 The High Court is responsible for the supervision and support of arbitration within
Singapore.""8 Its decisions on arbitration can be appealed to the Court of Appeal. An appeal
against the High Court’s ruling on a tribunal’s jurisdiction may only be pursued with leave of
the High Court.''? The High Court may appoint persons with expertise to assist the Court,
including on matters of arbitration.'?°

"2 Arbitration (International Investment Disputes) Act (Cap 11, 2012 Rev Ed) (Singapore), s 5.
"3 Specialized courts include the Family Court, the Coroners’ Court, and the Traffic Court. The State
Courts were previously known as the Subordinate Courts. Subordinate Courts (Amendment) Act 2014 (No 5
of 2014) (Singapore).
"4 The jurisdictional monetary limits in civil matters for the various court levels are as follows: (a) Small
Claims Tribunal has jurisdiction over claims no higher than S$10,000 or $$20,000 if the parties consent in
writing; (b) Magistrates’ Courts: $$60,000; (c) District Courts: $$250,000; and (d) the High Court has juris-
diction over amounts in dispute over $$250,000.
"5 Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (Singapore), s 3.
"6 The Chief Justice (presently, the former Deputy Chairman of SIAC, Sundaresh Menon SC) sits in the
Court of Appeal together with the Judges of Appeal. A typical Court of Appeal hearing is heard by three judges.
Supreme Court of Judicature Act, s 30.
"7 Singapore Supreme Court, ‘Structure of the Courts’, available at <http://www.supremecourt.gov.sg/
about-us/the-supreme-court/structure-of-the-courts> (accessed 1 November 2016).
"8 TAA, s8;AA,s2.
"9 eg IAA, s 10(4); AA, s 21A(1).
"20 Supreme Court of Judicature Act, s 10A. For instance, the Court of Appeal appointed Professor Lawrence
Boo as amicus curiae in an arbitration-related court application in PT Asuransi Jasa Indonesia (Persero) v Dexia

32
 B. Singapore Court Supervision and Assistance

Court of Appeal

Supreme
Court
Specialized lists of
High Court judges, including for
arbitration

State B.
! e
Courts District Magistrates’ Specialized Small Claims
Courts Courts Courts Tribunals

Figure 2.1 Singapore’s two-tier court system

Various specialist commercial lists have been established in the High Court. These lists iden- 2.56
tify High Court judges who have expertise in specialist areas of law. The specialist list for
arbitration was established on 7 April 2003 and at the time of writing comprises four judges
and a judicial commissioner of the High Court.'2’ The Court of Appeal also comprises a
number of judges with significant international arbitration experience, including Sundaresh
Menon CJ and Quentin Loh J, who were eminent arbitration practitioners before accepting
their judicial appointments and Prakash J, who was previously on the arbitration list when
she sat on the High Court.
The SICC was established in January 2015 as a specialist division of the Singapore High 2.57
Court for the resolution of cross-border commercial disputes. The SICC has jurisdiction
over ‘international’ and ‘commercial’ disputes referred to it by an agreement of the par-
ties and cases which are transferred to it from the Singapore High Court upon a party's
application or by the High Court’s own motion. The SICC panel of judges comprises 15
Singaporean judges from the Singapore High Court and Court of Appeal, alongside 12
international judges, comprising four from the United Kingdom, two each from Australia
and the United States, and one each from France, Austria, and Japan.'??
The Supreme Court Registry is led by a Registrar and a team of Senior Assistant Registrars 2.58
and Assistant Registrars. Certain civil proceedings in the High Court, such as applications
for a stay of court proceedings in favour of arbitration, are heard in chambers (ie the proceed-
ings are not held in open court) and are dealt with by Senior Assistant Registrars or Assistant
Registrars. '??

Bank SA (n 71) and again in Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals {2016}
1 SLR 373 para 63.
121 The arbitration list judges are Justice Belinda Ang, Justice Quentin Loh, Justice Steven Chong, Justice
Vinodh Coomaraswamy, and Judicial Commissioner Kannan Ramesh: Singapore Supreme Court, ‘Structure
of the Courts’ (n 117).
122 Singapore International Commercial Court, ‘Judges’, available at <http://www.sicc.gov.sg/Judges.
30> (accessed 1 November 2016).
123 Arthe time ofwriting, the Registrar ofthe Supreme Courtis Mr Vincent Hoong and the Deputy Registrar
is Ms TehHwee Hwee, who is also the Divisional Registrar of the Singapore International Commercial Court.
Supreme Court, ‘Registrars’, available at <http://www.supremecourt.gov.sg/about-us/the-supreme-court-
registry/registrars> (accessed 1 November 2016).

33
 Legal Framework for Arbitration in Singapore

2. Court supervision and assistance

2.59 As explained in this section, the Singapore courts support arbitration in Singapore through
enforcing arbitration agreements, determining challenges to arbitrators, issuing subpoenas,
granting interim relief, protecting the confidential nature of arbitration, issuing anti-suit
injunctions, and enforcing tribunal orders and directions. Each is considered in turn fol-
lowed by a discussion on three functions which could have been performed by the Singapore
courts but have been allocated to SIAC, namely the appointment of arbitrators, the assess-
ment of costs, and the authentication of awards and arbitration agreements. (The challenge
and enforcement of awards in Singapore is considered in part C of this chapter.)
a. Enforcement ofarbitration agreements
2.60 The ease with which an arbitration agreement can be enforced in Singapore depends, at least
in theory, on whether the agreement falls within the scope of the IAA or the AA.
2.61 The IAA incorporates Art 8 of the 1985 UNCITRAL Model Law, which mandates that a
Singapore court must stay any legal proceedings brought in violation of an arbitration agree-
ment unless the arbitration agreement is null and void, inoperative, or incapable of being
performed, '*4 or the dispute is not arbitrable.
'25
2.62 In contrast, under the AA, a Singapore court has discretion whether to stay court proceed-
ings which are inconsistent with an arbitration agreement even if it forms the view that the
arbitration agreement is valid. Before granting a stay, the court must be satisfied that: (a)
there is no sufficient reason why the matter should not be referred to arbitration in accord-
ance with the arbitration agreement; and (b) the applicant was, at the time the proceedings
commenced, and still remains, ready and willing to do all things necessary for the proper
conduct of the arbitration.'?6
2.63 In practice, however, the presumption in cases governed by the AA is in favour of a stay, and
the party opposing the stay bears the burden of showing sufficient reason why the matter
should not be referred to arbitration.
'2’
2.64 A Singapore court will not ordinarily undertake a full review of an arbitration agreement
when considering an application for a stay in favour of arbitration.'28 In Tjong Very Sumito,'2°

'24 TAA, s 6(1) modifies the 1985 UNCITRAL Model Law, Art 8 such that the party seeking a stay must do
so ‘before delivering any pleading or taking any other step in the proceedings’ other than making an appearance,
"5 Tomolugen Holdings Ltd v Silica Investors Ltd (n 120) at para 74.
126 AA, s 6(2).
"27 Kwan Im Tong Chinese Temple v Fong Choon Hung Construction Pte Ltd [1998] 1 SLR(R) 401 (Singapore
Court of Appeal); JDC Corp v Lightweight Concrete Pte Ltd [1999] 1 SLR(R) 96 (Singapore Court of Appeal).
In both these cases governed by the AA, a stay of proceedings in favour of arbitration was granted. In contrast,
in Fasi v Speciality Laboratories
Asia Pte Ltd (No 1) {1999} 1 SLR(R) 1138 (Singapore High Court), a stay was
refused because the court proceedings were well-advanced at the time of the stay application such that the High
Court considered that it made little sense ‘to order that everything be stayed and parties return to the starting
line in another forum’. In particular, the plaintiffs application for summary judgment had already been heard.
In Multiplex Constructions Pty LtdvSintal Enterprise Pte Ltd [2005] 2 SLR(R) 530 (Singapore Court of Appeal),
the Court of Appeal held that a stay should only apply to those parts of
determined by arbitration. y y apply parts of aa di dispute which are capable of being
"28 1985 UNCITRAL Model Law, Art16(1); AA,s 21.
in Very Sumito and others v Antig Investments Pte Ltd [2009] 4 SLR(R) 732 (Singapore Court
of
ppeal).

34
 B. Singapore Court Supervision and Assistance

the Court of Appeal held thar the ‘Court's jurisdiction to grant a stay is satisfied once the pre-
requisites of s6 [of the LAA] appear to have been met’.'3° More recently, the Court of Appeal
clarified in Tomolugen Holdings Ltd v Silica Investors Ltd that a Singapore court should grant
a stay of court proceedings if it is prima facie satisfied that: (a) there is a valid arbitration
agreement; (b) the dispute in the court proceedings falls within the scope of the arbitration
agreement; and (c) the arbitration agreement is not null and void, inoperative, or incapable
of being performed.'3"
In other words, the courts will consider that the arbitration agreement is ‘presumptively 2.65
valid’.'?? This is consistent with the view under Singapore law that an arbitral tribunal has
the primary competence to determine its own jurisdiction,"?3 with the courts there only to
supervise and review such determinations.'4

b. Challenges to arbitrators
As discussed in Chapter 8, the SIAC Court determines any challenges made against an arbi- 2.66
trator pursuant to Rule 16.1 of the 2016 SIAC Rules. The SIAC Court’s decision can be
appealed to the High Court within 30 days of a party’s receiving notice of the decision."35
As explained in Chapter 8, paragraph [8.115], this right of appeal is arguably a mandatory
provision of the 1985 UNCITRAL Model Law and thus overrides SIAC Rule 16.4 which
provides that the decision of the SIAC Court on an arbitrator challenge is final and not sub-
ject to appeal.
c. Subpoenas
A party may apply to the High Court for a subpoena ordering the attendance of a witness at 2.67
a hearing within Singapore or the production of documents."
d. Confidentiality
As discussed in Chapter 16, Singapore courts are required to respect any confidentiality 2.68
obligations attaching to an arbitration.'?” Thus, either party may request that proceedings
relating to an arbitration agreement be conducted behind closed doors.'38 Information on
Singapore court proceedings relating to an arbitration may only be published if all parties
agree or the court is satisfied that publication will not reveal any confidential information,

130 Tjong Very Sumito (n 129) (emphasis added).

"3! Tomolugen Holdings (n 120) para 63; TMT Co Ltd v The Royal Bank of Scotland plc (trading as RBS
Greenwich Futures) and others [2017] SGHC 21 at [63].
‘32. First Link Investments Corp Ltd v GT Payment Pte Ltd et al [2014] SGHCR 12, para7.
133 IAA, s 3(1); 1985 UNCITRAL Model Law, Art 16(1); AA, s 21(1).
"34 Malini Ventura v Knight Capital Pte Ltd and others {2015} SGHC 225 at [27]. The High Court reached
this conclusion with reference to the drafting history of the Model Law, which revealed that a provision confer-
ring upon courts the power to determine a tribunal's jurisdiction prior to the tribunal’s own decision on the issue
was proposed for inclusion in the Model Law but ultimately rejected out of concern that it would encourage
dilatory tactics and obstruct the arbitral process.
135 AA, s 8(1); 1985 UNCITRAL Model Law, Art 13(3); AA, s 15(4).
136 TAA, s 13(1); AA, s 30(1). In ALC v ALF [2010] SGHC 231 (Singapore High Court) (party names
changed to preserve confidentiality), the High Court revoked the issue ofa subpoena that had earlier been
granted on an exparte basis onthe grounds that the issue of the subpoena had been an abuse ofprocess. The
defendant had applied for a subpoena even though the tribunal had already rejected, after a full hearing, the
defendant's request that theplainti witnesses provide
ffs sworn testimony attesting to the adequacy of document
disclosure.
137 AAYvAAZ([2011] 1 SLR 1093 (Singapore High Court) (party names changed topreserve confidentiality).
138 TAA, s 22; AA, s 56.
35
 Legal Framework for Arbitration in Singapore

including the identity of the parties. Publication of a decision may be ordered to be in a

redacted form (with the names of the parties changed) and possibly delayed by up to ten
years if the matter is particularly sensitive.'?*
e. Interim measures
2.69 The ability of a party to obtain interim relief from an arbitral tribunal, an emergency arbi-
trator, or a competent court is addressed in Chapter 13. For now, it bears noting that the
Singapore High Court has the power under the IAA to grant interim measures in relation
to arbitrations both seated in Singapore and, due to legislative amendments made in 2009,
those held abroad.'*° If the case is urgent, the High Court may make orders ‘necessary for
the purpose of preserving evidence or assets’.'4" If the case is not urgent, the High Court
may make such orders only upon application of one party made with the permission of
the arbitral tribunal or the agreement in writing of the other parties (which, in practice, is
unlikely).'42
2.70 The Singapore High Court, however, does not have the power under the IAA to order secur-
ity for costs, discovery of documents, or interrogatories.'43 These orders are considered to be
procedural in nature and to fall within the prerogative of an arbitral tribunal. In contrast,
the High Court does have such powers under the AA, which, as already mentioned, provides
greater judicial support and oversight for Singapore domestic arbitrations.'4°
f Anti-suit injunctions
2.71 The Singapore High Court has the power to grant an anti-suit injunction to prevent a party
from commencing or maintaining a court action in breach of an arbitration agreement."
g. Enforcement oftribunal orders and directions
2.72 All orders and directions made or given by a tribunal are enforceable in Singapore
under both the IAA and AA with the leave of the High Court in the same manner as
if they were orders made by a Singapore court.'47 This is necessary as the New York

"99 TAA, s 23(2)-(4); AA, s 57(2)-(4).

. iesIAA, s 12A(1). For a discussion on the background to these legislative amendments, see Ch 1, para
1.06].
"1 TAA, s 12A(4). The Singapore Court of Appeal in Maldives Airports Co Ltd v GMR Malé International
Airport Pte Ltd 2013] 2 SLR 449 (Singapore Court of Appeal) para 43, held that an ‘asset’ under IAA, s 12A(4)
includes contractual rights which, if lost, would not be adequately remediable by an award of damages.
"42 TAA, s 12A(5).
43 TAA, s 12A(2).
"44 C Leng Sun SC, Singapore Law on Arbitral Awards (Singapore Academy of Law, 2011) para 2.47.
"45 AA, ss 28 and 31(1)(a).
"46 In WSG Nimbus Pte Ltd v Board of Control for Cricket in Sri Lanka {2002} 1 SLR(R) 1088 (Singapore
High Court), an anti-suit injunction was granted by the Singapore High Court to restrain the defendant from
proceeding with an action in the Colombo High Court. See also Regalindo Resources Pte Ltdv Seatrek Trans Pte
Ltd(2008] SLR(R) 930 (Singapore High Court), where an anti-suit injunction was not granted against a party
which had brought foreign proceedings to obtain security despite itself commencing arbitration proceedings
in Singapore; and Mitsui Engineering & Shipbuilding Co Ltd v Easton [2004] 2 SLR(R) 14 (Singapore High
Court), where the High Court held that it had no jurisdiction or power to injunct an arbitrator from
proceeding
with a hearing pending the Court’s decision on whether he should be removed from office.
"47 IAA, s 12(6); AA, s 28(4). The AA provides in s 28(4) that tribunal orders are to be treated as orders
the High Court. In contrast, IAA, s 12(6) provides that tribunal orders are to be enforced of
as ifthey were orders
made by ‘a court’, which could include a foreign court. This, along with the fact the power is in
the [AA which
covers foreign arbitrations, suggests the court’s power extends to the enforcement of orders
and directions of
tribunals seated outside Singapore.

36
 B. Singapore Court Supervision and Assistance

Convention only provides a framework for the recognition and enforcement of tribunal
awards.'48

h. Appointment of arbitrators
In the event a party fails to nominate an arbitrator, the President of SIAC? and individuals 2.73
appointed to the role by the Singapore Chief Justice’ have the power to make the appoint-
ment. Notably, the Singapore High Court does not have the power to appoint an arbitrator.
The SIAC President’s power of appointment applies to SIAC arbitrations as well as ad hoc
arbitrations and those conducted under the rules of other arbitral institutions.">".
i. Assessment ofcosts
Prior to the enactment of the IAA, the original AA required party costs to be taxed (ie 2.74
assessed)'*? by the Registrar of the High Court in the event a tribunal failed to assess costs.'53
On the recommendation of the 1993 law reform committee which proposed the enactment
of the IAA,'™ the Registrar of SLAC now performs that role for arbitrations subject to the
IAA unless the award otherwise directs.'5> The Registrar of the Supreme Court, however,
remains the person responsible for the taxation of both party and tribunal costs for arbitra-
tions governed by the AA.'%6
Significantly, the AA provides that an agreement of the parties on the allocation of costs is 2.75
void unless agreed after a dispute has arisen.'5”
j. Authentication ofawards and arbitration agreements
The New York Convention requires a party seeking to enforce an arbitral award to submit to 2.76
the enforcement court (a) a duly authenticated original or a duly certified copy of the award
and (b) the original arbitration agreement or a duly certified copy thereof.'*8

'48 The Hong Kong courts are similarly available to enforce tribunal orders and directions pursuant to s 61
of the Hong Kong Arbitration Ordinance, which expressly extends to orders and directions of tribunals seated
outside Hong Kong. The courts of England and Wales will also enforce tribunal orders and directions pursuant
to s 42 of the English Arbitration Act.
149 TAA, s 8(2); 1985 UNCITRAL Model Law, Art 11(3) and (4); AA, s 13(5) and (8), both of which have
been amended by the Statutes (Miscellaneous Amendments) Act 2016, ss 2 and 11.
150 TAA, s 8(3). Professor Lawrence Boo held the position of appointing authority from 1 June 2004 to 5
April 2009 (Government Gazette Notification No 1656 of 2004). Sundaresh Menon SC was appointed from
6 April 2009 to 28 February 2011 (Government Gazette Notification No 923 of 2009). The appointment of
Sundaresh Menon SC was cancelled with effect from 1 October 2010 when he ceased to be Deputy Chairman
of SIAC. In 2011, Cavinder Bull SC was named an appointing authority from 5 September 2011 to 28 February
2013. Following the amendment to the SIAC Rules on 1 April 2013, the new appointing authorities until 31
March 2015 under the IAA were Dr. Michael Pryles, Cavinder Bull SC, and John Savage (Government Gazette
Notification Nos 758 and 765 of 1 April 2013). Gary Born was appointed as the President of the SIAC Court
of Arbitration with effect from 1 April 2015, and in that capacity has since acted as an appointing authority
under s 8(2) of the LAA.
151 SIAC’s statistics on cases ‘handled’ include those in which it acts as an appointing authority—see Ch 1,
paras [1.49-1.50].
152 For a discussion on the assessment of costs in SIAC arbitration, see Ch 15.
153 Law Reform Committee, Report (1993) (n 9) para 42.
154 Law Reform Committee, Report (1993) (n 9) para 42.
155 TAA, s21(1).
196 AA, ss 39(1) <r
157 ss 3) 2
138 Nee er pani on the Recognition and Enforcement of Foreign Awards 1958 (New York
Convention),
Art [V(1); LAA,
s30(1).

37
 Legal Framework for Arbitration in Singapore

2.77 In 2010, amendments were made to the [AA to empower the Singapore Minister of Law to
appoint persons to authenticate original arbitration awards and certify copies of awards and arbi-
tration agreements for the purposes of enforcing a Singapore award in a New York Convention
signatory State.'5? At the time of writing, the appointed persons are the Registrar and Deputy
Registrar of SIAC, the Chief Executive and Deputy Chief Executive of Maxwell Chambers,'®
and the Registrar and the Chairman of the Singapore Chamber of Maritime Arbitration
(SCMA).'®!
2.78 The Registrar and Deputy Registrar of SLAC can authenticate a SIAC award by verifying that it
has been duly signed by the arbitrators. SIAC will do so by comparing the arbitrators’ signatures
on the award with SIAC’s own original copy of the award.
2.79 For awards issued in ad hoc arbitrations seated in Singapore, SIAC will ask the parties to pro-
vide it with the contact details of the arbitrator(s) who issued the award. The arbitrator(s) will be
asked by SIAC to provide a copy of the award which will be compared by SIAC to the version
presented by the party for authentication.
2.80 For awards issued in arbitrations seated in Singapore and conducted under the auspices of other
arbitral institutions, SIAC will request an original or certified true copy of the award to ensure it
is identical to the award submitted for authentication from either the institution that issued the
award or the arbitrators.

C. Challenge and Enforcement of Awards in Singapore

2.81 The mechanics for challenging an award rendered in Singapore are first addressed in sections 1
and 2 of this part C. There follows a brief consideration of the general attitude of the Singapore
judiciary to attempts to challenge the legitimacy of arbitration awards (section 3), before a brief
analysis is provided of specific grounds for challenging an award (section 4). The enforcement
procedures for Singapore awards, foreign awards, and non-New York Convention awards are
then considered (sections 5 to 7), followed by the enforcement of ICSID awards in Singapore
(section 8).

1. Rights of challenge against rulings on jurisdiction

2.82 Singapore law recognizes, and gives first priority to, the power of a tribunal to determine
whether it has jurisdiction and the scope of that jurisdiction.'®? The Singapore courts, how-
ever, will have the final word on what matters can be determined by a tribunal. Thus, any
ruling on jurisdiction, including a ruling that the tribunal has no jurisdiction, is subject to
review by the Singapore High Court under both the IAA and the AA. The Court’s review
of jurisdiction will be undertaken on a de novo basis. Thus, the tribunal’s own view of its
jurisdiction is not determinative. But this does not mean that all that transpired before the
Tribunal should be disregarded, necessitating a full re-hearing of all the evidence, only that

OO
OEE

59 TAA, s 19C.
'60 Government Gazette Notification Nos § 650 and 651 of 2009,
'61 Government Gazette Notification Nos 734 and 738 of 2010.
"62 TAA, s 3(1); 1985 UNCITRAL Model Law, Art 16(1); AA, s 21(1).

38
 C. Challenge and E nforcement of Awards in Singapore

there is no fetter on the court’ fact-finding abilities when considering whether the tribunal
had jurisdiction.’

If the tribunal's decision on jurisdiction is made at an early stage of the proceedings or asapre- 2.83
liminary issue, any party has 30 days after receiving notice of the decision to apply to the High
Court for review pursuant to Art 16(3) of the 1985 UNCITRAL Model Law." Such a decision
can be ‘set aside’ or, more accurately, ‘reversed’, even though it cannot properly be characterized
as an ‘award’.'® The High Court's ruling can be appealed to the Court ofAppeal with the leave
ofthe High Court.'®* (While possible, the High Courtis unlikely to order astay ofan arbitration
pending its consideration of a tribunal’s ruling on jurisdiction.'6” The Singapore High Court
recently held that a party seeking to suspend an arbitration pending a jurisdictional challenge
before the Court must show the existence of ‘special circumstances’ warranting a stay of the arbi-
tral proceedings, thus affirming the principle of minimal curial intervention. The Court held
that ‘there must be something that is over and above inconvenience, time wasted and exposure
to costs [in order to justify a stay of the arbitration] even though all of these matters could be
occasioned’ if the Courts ultimately rule that the tribunal does not have jurisdiction."® Further,
the strength of a party’s jurisdictional objection will not be a determinative factor in an applica-
tion for a stay.'7°)

In contrast, a decision bya tribunal on jurisdiction (ifmade in conjunction withadetermination 2.84

of one or more substantive issues'’') rendered in the form of an award is subject to challenge
within three months of the receipt of the award.'72
A party's right to challenge a ruling on jurisdiction under the terms of the IAA and AA_ 2.85
applies notwithstanding Rule 32.11 of the SIAC Rules, which provides that the parties

‘63 Sanum Investments Ltd v Government of the LaoPeople's Democratic Republic [2016] 5 SLR 536 at [41-43],
quoting PrakashJin AQZ v ARA [2015] 2 SLR 972 at [57]. See also Jiangsu Overseas Group Co Ltd v Concord
Energy Pte Ltd and another matter [2016] SGHC 153 at [48]; and BCY v BCZ [2016] SGHC 249 at [36].
164 TAA, s 10(3), 1985 UNCITRAL Model Law, Art 16(3); AA, s 21(9).
"65 See Ch 14, paras [14.02-14.04]. Jnternational Research Corp ple v Lufthansa Systems Asia Pacific Pte Ltd
[2014] 1 SLR 130 (Singapore Court of Appeal) para 69:
‘The expression ‘set aside’ or ‘setting aside’ is used in many different contexts. Understandably, it does
not always mean the same thing. As with so many things, its meaning must depend on the context in
which it is used and, in particular in this case, on what is being set aside. An application to the court
to decide on the jurisdiction of an arbitral tribunal pursuant to s 10 of the IAA read with Art 16(3)
of the Model Law 1985 is a perfectly legitimate means of challenging an arbitral tribunal’s prelimin-
ary ruling on jurisdiction. It is immaterial in this context that as a matter of form, the relief sought
is expressed in terms of setting aside the arbitral tribunal’s decision on jurisdiction. (Emphasis in
original.)
166 TAA, s 10(4); AA, s 21A(1).
167 TAA, s 10(9); AA, s 21A(6); 1985 UNICTRAL Model Law, Art 16(3). Both provisions state that a chal-
lenge to a tribunal's jurisdictional ruling ‘shall not operate as a stay of the arbitral proceedings or of execution of
any award or order made in the arbitral proceedings unless the High Court orders otherwise’.
168 [oblaw Companies Limited v Origin & Co Ltd & another [2017] SGHC 59, para 14.
169 Loblaw Companies Limited v Origin & Co Ltd & another [2017] SGHC 59, (n 168) para 14.
170 Loblaw Companies Limited v Origin & Co Ltd & another [2017] SGHC 59, (n 168) para 17.
171 Fora discussion on why a decision on jurisdiction alone cannot qualify as an award under Singapore law,
seeCh 14, paras [14.02-14.04].
172 IAA, s 3(1); 1985 UNCITRAL Model Law, Art 34(3); AA, s 48(2).

39
 Legal Framework for Arbitration in Singapore

‘waive their rights to any form of appeal, review or recourse to any State court’, ‘insofar as
be! . > (*

such waiver may be validly made’ .'7

2. Rights of challenge against a Singapore award

a. Set-aside applications under the IAA
2.86 A party may seek to have a Singapore arbitral award subject to the IAA set aside on the
grounds set out in Art 34 of the 1985 UNCITRAL Model Law. These grounds relate pri-
marily to issues of jurisdiction, procedural fairness, and public policy. Specifically, Art 34 of
the 1985 UNCITRAL Model Law provides that an award ‘may’'”‘ be set aside if a party to
the arbitration agreement was under some incapacity, the arbitration agreement is not valid,
the tribunal was not properly formed, the applicant was not given proper notice of the pro-
ceedings or otherwise was unable to present its case, the tribunal acted outside its jurisdiction
or contrary to the agreed arbitral procedure, the subject matter was not arbitrable,'’> or the
award is contrary to public policy.'”® Questions of law cannot be appealed under the IAA,
nor can the merits of the case be reviewed by the High Court.'””
2.87 In addition to the grounds prescribed by the 1985 UNCITRAL Model Law, an award sub-
ject to the [AA may be set aside, as noted in paragraph [2.41], if the making of the award was
induced or affected by fraud or corruption or a breach of natural justice occurred in connec-
tion with the making of the award by which the rights of any party have been prejudiced.'7
2.88 An application to set aside an award must be made within three months from a party’s receipt
of the award.'7° A party’s statutory right to have an award set aside will prevail over any agree-
ment of the parties to waive a right of review.'®° While the Ministry of Law sought views in
2011 on whether the IAA ‘should be amended to allow parties, by agreement, to waive their
right to set aside arbitration awards, thereby precluding any appeal to the courts’,"*' as things
stand, a party’s right to challenge an award cannot be waived under Singapore law.

"3 IAA, s 15A(1). See Ch 14, para [14.46]. In Popack v Lipszyc 2015 ONSC 3460, the Ontario Superior
Court of Justice held that Art 34 of the UNCITRAL Model Law is a mandatory provision from which the par-
ties cannot derogate. The court reasoned at [44] that ‘[i]f parties can contract out of Article 34 for all purposes,
there would be no jurisdiction for a court to set aside an award as a remedy for breach of [Articles 18 and 24 of
the Model Law, which are] admittedly mandatory provisions.’ The decision was upheld by the Ontario Court
of Appeal, albeit without addressing this issue.
74 1985 UNCITRAL Model Law, Art 34(2).
75 1985 UNCITRAL Model Law, Art 34(2).
6 1985 UNCITRAL Model Law, Art 34(2).
"7 PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA(n71) para 57: ‘Errors of law or fact made in an arbi-
tral decision, per se, are final and binding on the parties and may not be appealed against or set aside by a court
except in the situations prescribed under s 24 of the Act and Art 34 of the Model Law.’ Appeals on questions of
law are allowed, however, under the AA.
8 TAA, s 24.
79 1985 UNCITRAL Model Law, Art 34(3); AA, s 48(2). Where a request has been made under the 1985
UNCITRAL Model Law, Art 33 or the AA, s 43 (correction and interpretation of award; additional award), the
three-month period runs from the date the request has been disposed of by the tribunal. ;
"80 TAA, s 15A(1) read in conjunction with 1985 UNCITRAL Model Law, Art 34(1).
'81 The Ministry of Law observed that such a ‘waiver has been introduced in Article 1522 of the new French
Arbitration Act, which provides that “parties may, at any time, expressly waive their right to bringanaction toset
aside”’, Ministry of Law, International Arbitration (Amendment) Bill Public Consultation Brief, 20
2011, para 23 (emphasis added), ion Brief, 20October

40
 C. Challenge and Enforcement of Awards in Si ngapore

lf a party fails to apply to set aside an award made under the IAA within the prescribed 2.89
time limit (ie its ‘active’ remedy), it can raise similar arguments challenging the validity of
the award if and when its opponent seeks to enforce the award in Singapore (ie a ‘passive’
remedy). '8?

b. Set-aside applications under the AA

The High Court can set aside an award which falls within the scope of the AA on grounds 2.90
similar to those prescribed in Art 34 of the 1985 UNCITRAL Model Law as supplemented
by the additional grounds recognized under Singapore law of fraud, corruption, and a breach
of the rules of natural justice.
'®3
In addition, and unlike the IAA, an award subject to the AA can be appealed on a question 2.91
of law.'* (Such a right of appeal, however, may not exist when the parties have agreed to the
application of the SIAC Rules.'*>) An appeal on a question of law can be brought only with
the agreement of all parties (which is rare in practice) or with the leave of the High Court
upon its being satisfied of certain stringent conditions, including that the decision is ‘obvi-
ously wrong’ or the question is one of general public importance and the tribunal’s decision
is at least open to serious doubt.'** The appeal can be lodged only after the appellant has
exhausted any arbitral process of appeal or review, including an application for correction
and interpretation of the award.'*” The appellant may be ordered to provide security for the
costs of the appeal.'88

3. General attitude of the Singapore courts to set-aside applications

As noted in Chapter 1, consistent with Singapore government policy of creating an 2.92
arbitration-friendly hub for the resolution of regional and international disputes, the
Singapore courts actively seek to support arbitration as a means of resolving commercial
disputes. This is revealed in part by their recognition that the principle of party autonomy in
arbitration means that not only do the parties have the freedom to choose how their arbitra-
tion will be conducted, but, having chosen arbitration rather than litigation to resolve their
disputes, they are entitled to expect that there will be only limited court involvement in the
process. '®9Thus, the Singapore courts generally follow an approach of minimal curial inter-
vention, particularly in cases governed by the IAA.
The Singapore High Court in Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd recently noted 2.93
that the word ‘may’ in Art 34(2) of the 1985 UNCITRAL Model Law ‘underscores the dis-
cretionary powers of the supervising court to refuse to set aside an award even if there was a

182 PT First Media v Astro Nusantara (n 8) paras 65, 71, and 143. See the discussion on this topic at paras

184 AA, s 49(1). The provision is substantially similar to the Arbitration Act 1996 (UK), s 69.
185 See Ch 16, para [16.40]. A party to an arbitration governed by the AA can appeal questions of law subject
to any agreement of the parties precluding such an appeal. Rule 32.11 of the SIAC Rules is likely to represent
such an agreement.
18 AA, ss 49(3)—(5).
187 AA, ss 49(4) and 50(2).
188 AA, s50(6).
189 Tyiulzi Cesare SRL v Xinyi Group (Glass) Co Ltd (2014] SGHC 220 at [46]: “There are two aspects to this
theprocedural freedom
ands
concept ofparty autonomy ~therestricted role of thecourts in thearbitral proces
and flexibility enjoyed by the parties.’

41
 Legal Framework for Arbitration in Singapore
—e-cececen iseusinsss sitit eens
breach of the agreed procedure’ .'% Generally speaking, the courts will only set aside an award
if the shortcomings of the tribunal caused a party real prejudice or the tribunal's breach was
particularly serious.'9"
2.94 This hands-off attitude extends to the consideration of set aside applications where the
courts’ starting point is one of deference to the arbitrators and the choices made by the par-
ties as to how they want their disputes resolved (including through their choice of arbitration
rules). The Singapore courts are also slow to criticize a decision reached by a tribunal whose
members will generally not be able to defend themselves in the set-aside proceedings."*
Accordingly, the Singapore courts have rejected the vast majority of applications to seaside
an award.
2.95 At the time of writing, there have been 39 publicly known applications made to set aside
awards under the IAA and AA, of which only nine have been granted in whole or in part, or
just under a quarter of the applications.
'%
2.96 The approach of the Singapore courts to set aside applications was summed up by the
Singapore Court of Appeal in Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte
Ltd thus:
[Flairness justifies a policy of minimal curial intervention, which has become common as a
matter of international practice. To elaborate, minimal curial intervention is underpinned by
two principal considerations. First, there is a need to recognise the autonomy of the arbitral
process by encouraging finality, so that its advantage as an efficient alternative dispute reso-
lution process is not undermined. Second, having opted for arbitration, parties must be taken
to have acknowledged and accepted the attendant risks of having only a very limited right of
recourse to the courts. It would be neither appropriate nor consonant for a dissatisfied party to
seek the assistance of the court to intervene on the basis that the court is discharging an appel-
late function, save in the very limited circumstances that have been statutorily condoned.
Generally speaking, a court will not intervene merely because it might have resolved the vari-
ous controversies in play differently.

... It must always be borne in mind that it is not the function of the court to assiduously comb
an arbitral award microscopically in attempting to determine if there was any blame or fault
in the arbitral process; rather, an award should be read generously such that only meaning-
ful breaches of the rules of natural justice that have actually caused prejudice are ultimately
remedied.'™

'90 Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd {2015} 1 SLR 114 at [60].
'9\ Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd {2015} 1 SLR 114 at [65].
' An ‘arbitral tribunal is not able to defend itself and the accusation can have an adverse impact on the
arbitrator's reputation and standing in the arbitration community’: Coal and Oil LLC »vGHCL Ltd [2015]
SGHC 65, para 2.
'93 The figures reported are the results of the author's own research as of 17 March 2017 based on a review
through all reported decisions of the Singapore courts on setting aside applications under the IAA and AA.
A total of 29 applications have been brought under the IAA, of which four were granted (three in full and one
in part), while a total of ten applications have been brought under the current AA, of which five were granted
(two in whole, three in part).
'% Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd (2007) 3 SLR(R) 86 (Singapore Court of
Appeal) paras 65(c)—(f). Followed in TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Led
[2013] 4 SLR.972 at [43] and AMZ v AXX [2016] 1 SLR 549 at [95], [97], and [103].

42
 C. Challenge and E nforcement ofAwards in Singapore

The High Court will only intervene in ‘clear and obvious’ cases or, put another way, inones 2.97
which the alleged shortcomings of the tribunal are ‘demonstrably clear on the face of the
record .' The Court will not ‘nit-pick’ at an award and will instead read an award ‘in a
reasonable and commercial way, expecting, as is usually the case, that there will be no sub-
stantial fault chat can be found with it’.'9* The High Court will also not set aside an award if
the ‘complaint [is] not premised upon circumstances attributable to the tribunal’ but are a
consequence of a party's own failures or choices (tactical or otherwise).'%”

In addition to interpreting and applying the statutory grounds for challenging an award 2.98
strictly, the Singapore courts have rejected the notion that they retain a residual discretion
to set aside an award based on grounds which are not stipulated in the relevant statute.’
The Singapore High Court will also frown upon a party which attempts to take a ‘second bite 2.99
at the cherry’ by raising new arguments before the Court that were not previously presented
to the tribunal.'®? Nonetheless, there appears to be no absolute rule to exclude the admission
of fresh evidence either at first instance before the High Court” or on appeal to the Court of
Appeal.°' In that regard, the Singapore High Court has indicated that it will apply a modi-
fied version of the so-called Ladd v Marshall test such that fresh evidence may be admitted
to the Court if:
(a) the party seeking to admit the evidence demonstrates sufficiently strong reasons why the
evidence was not adduced at the arbitration hearing;
(b) the evidence if admitted would probably have an important influence on the result of
the case though it need not be decisive; and
(c) the evidence must be apparently credible though it need not be incontrovertible.?%

4. Analysis of specific grounds for challenging an award

Complaints about the existence or exercise of the tribunal’s jurisdiction are perhaps the most 2.100
frequent basis upon which challenges to an award are brought (or enforcement resisted. Such
challenges are considered earlier in part C of this chapter and in Chapter 10. The other key
grounds for challenging (or resisting enforcement of) an award are considered below.

195 TMM(n 194) at [125].

19% TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] SGHC 186 (Singapore
High Court) para 45, relying on Bingham J’s judgment in Zermalt Holdings SA v Nu-Life Upholstery Repairs Ltd
[1985] 2 EGLR 14 at [14].
197 Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd(n 190) para 20.
198 1 W Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd and another appeal (2013) 1 SLR 125
(Singapore Court of Appeal) para 38: ‘the certainty sought to be achieved by [Article 5 of the UNCITRAL
Model Law] would be significantly undermined if the courts retained a concurrent “supervisory jurisdiction
over arbitral proceedings or awards that could be exercised by the grant of declaratory orders not expressly
provided for in the [AA orIAA)’. With that said, theSingapore Court of Appeal has accepted that a party can
resistenforcement of a Singapore award for reasons beyond those expressly stated in the IAA. See the discussion
case at [2.29-2.33].
we TaleConnSat v Xinyi Group (Glass) Co Ltd (n 190), at (67); BLC v BLB [2014] 4 SLR 79 at [53].
200 Jiangsu Overseas Group Co Ltd(n 163) at [53].
201 Sanum Investments Ltd (n 163)at (35).
202 Government ofthe LaoPeople’s Democratic Republic v Sanum Investments Ltd (2015] SGHC 15 at[44];
Sanum Investments
Ltd (n 163)at[27].
43
 Legal Framework for Arbitration in Singapore
ni
cei i neteen
cnn
a. Breach ofrules ofnatural justice
Art 34(2)(ii) of the 1985 UNICTRAL Model Law, incorporated into the IAA pursuant
to section 3(1), and section 48(a)(iii) of the AA provide that the High Court may set aside
an award if a party was not given proper notice of the appointment of an arbitrator or was
otherwise unable to present its case. This is supplemented by section 24(b) of the IAA and
section 48(1) (vii) of the AA, which provide that an award may be set aside for a breach of the
rules of natural justice by which the rights of any party have been prejudiced. The Singapore
Court of Appeal in John Holland Pty Ltd v Toyo Engineering Corp (Japan) held that a party
applying to set aside an award on the basis that a rule of natural justice has been breached
must identify:
(a) the relevant rule of natural justice;
(b) how that rule was breached;
(c) how the breach was connected to the making of the award; and
(d) how the breach prejudiced the applicant's rights.
While the precise content of a tribunal’s obligation to honour the rules of natural justice is
very much tied to the specific facts and circumstances of each case, a number of principles
can be distilled from Singapore case law, which may provide guidance in future cases.
1. Tribunal duty to treat the parties equally. Art 18 of the 1985 UNCITRAL Model Law
mandates that each party shall be treated with equality. That does not mean, however,
that the parties must be treated identically. The Singapore High Court has held that the
term ‘equality’ requires the tribunal to apply ‘similar standards to all parties throughout
the arbitral process’.2 Thus, for instance, the parties do not need to be given an identical
amount of time for speeches or the cross-examination of witnesses. Rather, each party
must be given a reasonable opportunity to present its evidence and arguments, which,
depending on the particular circumstances, may mean one party has more time than the
other.?%
2. Tribunal duty to give each party the opportunity to be heard. The IAA and AA require,
respectively, that each party be given a ‘full’? or ‘reasonable’?*’ opportunity to present
its case. The Singapore courts have drawn no distinction between these different formu-
lations of the right to be heard.?°* Thus, a party does not have an unlimited right to be
heard; just a reasonable one. Further, a party must be given the opportunity to be heard. It
has no grounds for complaint if it fails to seize the opportunity.”
3. Court deference to tribunal case-management decisions. As already mentioned, the
Singapore courts are deferential to and respectful of arbitral tribunals, unless given

203 [2001] 1 SLR(R) 443 at [18].

204 Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd(2015] 1 SLR 114, para 112.
205 Triulzi Cesare SRL, (n 190) at [112].
206 1985 UNCITRAL Model Law, Art 18, IAA, s 3(1).
207 AA, s 22.
208 ADG v ADI [2014] 3 SLR 481 at [104]. <
209 Triulzi Cesare SRL, (n 190) at [116]. In Re Landau, Toby Thomas QC [2016] SGHC 258 at [52] the
Singapore High Court noted, without ruling on the issue, that the applicant argued that its opponent's
obstructive conduct—its so-called guerrilla tactics—had deprived it of an opportunity to be heard. Whether it
is a breach of the rules of natural justice for a tribunal to allow one party not to produce documents to the other
side in discovery due to confidentiality constraints was considered in the case of Dongwoo Mann & Hummel Co
Ltd v Mann & Hummel GmbH [2008] 3 SLR (R) 871. wah

44
 C. Challenge and Enforcement of Awards in Sin ga pore

reason not to be, particularly in relation to their case-management decisions.2"° Thus,

the Singapore courts will be slow to rule that a breach of natural justice has occurred
where the breach is said to have arisen from a procedural or case-management decision
of atribunal. In the eyes of the Singapore courts, parties who have chosen to arbitrate in
Singapore or under the SIAC Rules have agreed to give the tribunal a wide and flexible
discretion to (a) determine its own procedures and processes, and (b) receive and evaluate
competing evidence and arguments in order to arrive at its determination.2"
4. Tribunal duty to be impartial and independent. Parties to an arbitration have the right
to be heard by an independent and impartial tribunal. This principle is codified in the
SIAC Rules and Singapore law.?'? While allegations that an arbitrator is biased would
ordinarily be raised during the course of an arbitration in the context of a challenge to
an arbitrator pursuant to Rule 14.1 of the SLAC Rules, arbitrator bias could in theory
also be a ground for setting aside an award.?'? The Singapore High Court in PT Central
Investindo v Franciscus Wongso and others held that the requirement of impartiality and
independence is mandatory under the UNCITRAL Model Law. A failure of this manda-
tory requirement could give rise to a breach of the rules of natural justice and/or public
policy, or cause an award to be set aside under Art 34(2)(a)(iv) of the UNCITRAL Model
Law for not being ‘in accordance with the law’ or ‘in accordance with the agreement of
the parties’.?"4
5. Tribunal duty to attempt to understand the parties’ submissions. An erroneous decision
by a tribunal is not in itself inconsistent with the rules of natural justice. More is needed
for an award to be set aside. Indeed, having chosen to resolve their disputes through a
process which is intended to produce a decision which can only be challenged based on
limited grounds, the parties are taken to have accepted the risk that the tribunal may
come to the wrong conclusion.?"> Thus, it is not a breach of natural justice for a tribunal
to ‘fail to comprehend the [parties’] submissions or comprehend them erroneously’.?"¢ It
will be, however, if the tribunal fails to attempt to understand a parties’ submissions, such
as when an arbitrator wrongly assumes that a party has abandoned a claim.?"”
6. Duty to give reasons and explanations. Unless otherwise agreed by the parties, the tribu-
nal shall state the reasons upon which the award is based.?"* The contours of this duty are
explored in Chapter 14.
7. Duty to deal with the essential issues. When giving its reasons, an arbitral tribunal is not
obliged to deal with every argument. ‘Natural justice requires that the parties should be
heard; it does not require that they be given responses on all submissions made.’?'? A tri-
bunal must take care, however, to ensure that the ‘essential’??? or ‘important’?! pleaded

210 ADG v ADI [2014] 3 SLR 481 at [114]. Case-management decisions, however, are still subject to the
right to be heard: Triudzi (n 190) at (131).
211 ADG v ADI [2014] 3 SLR 481 (Singapore High Court) paras 111 and 114.
212 STAC Rules (2016), Rule 13.1; LAA, s 3(1), 1985 UNCITRAL Model Law, Art 12(1); AA, s 14(1). See
Ch 8 for a discussion on the duty of an arbitrator to be impartial and independent of the parties.
213, PT Central Investindo v Franciscus Wongso and others and another matter [2014] 4 SLR 978, paras 51-52.
214 PT Central Investindo v Franciscus Wongso and others and another matter (n 213) paras 133-35.
215 Soh Beng Tee, (n 194) at [65(c)].
216 TMM, (n 194)at [91].
217 TMM, (n 194) at [88].
218 JAA, S 3(1), 1985 UNICTRAL Model Law, Art 31(2); AA, s 38(2).
219 SEF Construction Pte Ltd v Skoy Conne Ltd(2010) 1 SLR733 at [60].
cted
Pte
220 TMM, (n 194) at [72-73].
221 AKN v ALC [2015] 3 SLR 488 at [46].

45
 Legal Framework for Arbitration in Singapore

issues are dealt with in the award, with the tribunal given considerable latitude to deter-
mine what is essential or important. The evidence (or inference) that an arbitrator has
wholly missed one or more such issues must be ‘clear and virtually inescapable’ .???
8. Tribunal duty to not look beyond the parties’ submissions. While a tribunal should not
decide a dispute on a ground which was not raised or contemplated, it can decide the
dispute based on a premise which is reasonably connected to an argument which was in
fact raised by a party.??3 But an award can be challenged if the tribunal’s reasoning reflects
a ‘dramatic departure from the submissions’ given by the parties or is based on ‘extrane-
ous evidence’. A tribunal, however, is not required to inform a party how it should better
frame its case to be in line with the tribunal’s views on the dispute?” and indeed to do so
might breach the tribunal’s obligations of independence and impartiality to the opposing
party. One view of the difficult balance to be struck by a tribunal was succinctly summa-
rized by BinghamJ of the English High Court (as he then was) thus:

[T]he rules of natural justice do require ... that matters which are likely to form the sub-
ject of decision, insofar as they are specific matters, should be exposed for comments and
submissions of the parties. If an arbitrator is impressed by a point that has never been raised
by either side then it is his duty to put it to them so that they have an opportunity to com-
ment... It is not right that a decision should be based on specific matters which the parties
have never had a chance to deal with, nor is it right that a party should first learn of adverse
points in the decision against him. That is contrary both to the substance of justice and to
its appearance, and on the facts of this case, I think that the landlords’ case is made out.?25

9. Tribunal’s duty to conduct the proceedings economically and expeditiously. A party's

right to be heard must be weighed against the parties’ agreement, when choosing the
SIAC Rules or a Singapore seat of arbitration, that the proceedings should be conducted
expeditiously and economically, with the tribunal being granted a wide and flexible dis-
cretion as to how it will achieve those objectives.?26 In particular, the need for a tribunal
to provide reasons for its decision must be balanced against its obligation to conduct the
proceedings economically and expeditiously.?2”

b. Fraud or corruption
2.101 In addition to the grounds provided under the 1985 UNCITRAL Model Law, an award
may be challenged under the IAA on the basis that it was induced or affected by fraud or
corruption,?28

ee
222 AKN v ALC [2015] 3 SLR 488 at [46] followed in Prometheus Marine Pte Ltd v King,
Ann Rita [2017]
SGHC 36 at [89].
223 TMM, (n 194) at [63].
224 AMZ v AXX [2016] 1 SLR 549 at (140]-[149].
225 Zermalt Holdings SA v No-Life Upholstery Repairs Ltd (1985] 2 EGLR 14; referenced with
approval in
AMZ v AXX [2016] 1 SLR 549 at [142]. BinghamJ also said: ‘If he feels that the proper
approach is one that has
not been explored or advanced in evidence or submission, then again it is his duty
to give the parties a chance
to comment.’ This might be open to question to the extent His Honour was Suggest
ing an arbitrator should
wer party as to how to present its case, which the Singapore High Court has express
ly rejected: AMZ v AXX
at ,
a a oe sp ne Hirnoo ADG v ADI [2014] 3 SLR 481 at [108]-
[112].
vision Maritima v Pacific Richfield Marine Pte Ltd(n \ :
228 TAA, s 24(a); AA s 48(1)(vi). airs ‘ait hears

46
 C. Challenge and Enforcement of Awards in Singapore

The Singapore High Court has held that an arbitral award will be tainted by fraud where 2.102
there is ‘a showing of bad faith during the arbitration proceedings, such as bribery, undis-
closed bias of the arbitrator, or wilful destruction or withholding of evidence’.??? Perjury
would be another instance of fraud for which an award can be set aside under Singapore
law. 230

Proof of fraud or corruption is not by itself sufficient to set aside an award; it must be shown 2.103
that there is a causative link between the fraudulent conduct complained of and the making
of the award. In the words of the Singapore High Court:
Proving fraud or conscionable conduct is insufficient. In order to obtain relief, the complain-
ant must show that the reprehensible conduct had caused it substantial injustice in that the
same procured or substantially impacted the making of the award.?3'
It is an accepted principle of Singapore law that an arbitral tribunal has the duty to investi- 2.104
gate issues of fraud and corruption.”? The Singapore High Court has noted (without ruling
on the issue) that arbitrators may request additional evidence or an explanation from the
parties, draw adverse inferences, or reverse the burden of proof if there is sufficient evidence
supporting an allegation of fraud or corruption.?33
c. Public policy
Art 34(2)(b)(ii) of the 1985 UNCITRAL Model Law allows a court to set aside an award if 2.105
it is in conflict with the ‘public policy of this State [ie Singapore]’.?34 The term ‘public policy’
is not defined in the UNICTRAL Model Law, the IAA, or the AA.

A question municipal courts around the world often face is whether the concept of public 2.106
policy should be applied from an international perspective, given that the principle in an
arbitration context derives from international instruments such as the New York Convention
and UNCITRAL Model Law, or whether it should be interpreted based on local customs
and practices, given that the principle has been incorporated into domestic law and is applied
by local judges.
Singapore law has resoundingly answered the question in favour of an internationalist 2.107
approach. Thus, the Singapore Court of Appeal in AJU v AJT held that the ‘concept of
public policy in Art 34(2)(b)(ii) of the Model Law has ... “an international focus” ’.23> Most
recently in Re Landau, Toby Thomas QC, the Singapore High Court rejected the Singapore
Law Society's argument that the concept of ‘public policy’ under the IAA was a ‘local-centric

229 Beijing Sinozonto v Goldenray Consortium (n71) at [41], following the Singapore High Court decision in
Don Mann+Hummel Co Ltd v Mann+Hummel GmbH [2008] 3 SLR(R) 871.
28SwissSingapore Overseas Enterprises Pte Ltd v Exim Rajathi India Put Ltd {2010} 1 SLR 573 at (29).
231 Swiss Singapore Overseas Enterprises Pte Ltd v Exim Rajathi India Put Ltd (n 230) at [30].
232 ReLandau, Toby Thomas QC [2016] SGHC 258 at [66], following the Singapore Court of Appeal deci-
sion in PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 at [72].
233 ReLandau, Toby Thomas QC [2016] SGHC 258 at [68].
234 1985 UNCITRAL Model Law, Art 34(2)(b)(ii); AA, s 48(1)(b). ne
235 AJU v AJT [2011] 4 SLR 739 (Singapore Court of Appeal) paras 37-38; Beijing Sinozonto Mining
InvestmentCoLtdvGoldenray Consortium (Singap Ltd{2014] 1 SLR 814 (Singapore High Court) para
Pteore)
38. This may have been inspired by French law, which has an internationalist approach to the regulation and
supervision of arbitration within its borders. Specifically, the Code of Civil Procedure (France), Art 1520(5)
allows aninternational arbitral award to be set aside ifits‘recognition or execution iscontrary to international

47
 Legal Framework for Arbitration in Singapore
en en

one’ and therefore accepted that public policy in the context of arbitration could be argued
before the Singapore courts by a non-Singapore law qualified lawyer.?*° The public policy
considerations relevant to the Singapore High Court’s determination of whether an award
rendered in Singapore should be set aside are the same as those relevant to determining
whether to recognize or enforce a foreign award in Singapore.?#7
2.108 This means in practical terms that the Singapore courts interpret narrowly the public policy
ground for setting aside awards as explained by the Court of Appeal in PT Asuransi Jasa
Indonesia (Persero) v Dexia Bank SA:
Although the concept of public policy of the State is not defined in the [IAA] or the Model
Law, the general consensus of judicial and expert opinion is that public policy under the
[IAA] encompasses a narrow scope. In our view, it should only operate in instances where
the upholding of an arbitral award would ‘shock the conscience’... or is ‘clearly injurious to
the public good or ... wholly offensive to the ordinary reasonable and fully informed mem-
ber of the public’ ... or where it violates the forum's most basic notion of morality and just-
ice. ... This would be consistent with the concept of public policy that can be ascertained from
the preparatory materials to the Model Law.?#8

2.109 ‘Thus, an award is not contrary to public policy under Singapore law merely because it is
wrong,” patently illegal,?#° or inconsistent with Singapore law.*4' Violations of public pol-
icy under Singapore law ‘only encompass those acts which are so egregious that elementary
notions of morality have been transgressed’ .?4? The concept of ‘public policy’ in the context
of arbitration is much narrower than the concept of what is in the ‘public interest’.

236 [2016] SGHC 258 at [36]. Nonetheless, the application to have Mr Landau QC appear as counsel in
proceedings before the Singapore High Court challenging an award under the LAA was rejected on the grounds
that the arguments raised in the challenge were not sufficiently novel so as to justify a non-Singapore qualified
lawyer being admitted to the Court.
237 AJUvAJT(n 235) para 37.
238 Asuransi Jasa Indonesia v Dexia Bank (n 71) para 59; followed in Prometheus Marine Pte Ltd v King, Ann
Rita [2017] SGHC 36 at [106].
i sweat Jasa Indonesia v Dexia Bank (n 71) at [56-57] Beijing Sinozonto v Goldenray Consortium (n 71)
at |41}.
240 The Singapore Court of Appeal in PT Asuransi Jasa Indonesia (Persero) (n 71) para 56 expressly rejected
the approach of the Supreme Court of India in Oil & Natural Gas Corporation Ltd v SAW Pipes Ltd [2003] 5
SCC 705 (Supreme Court of India) where the Supreme Court held that an award could be set aside on public
policy grounds in India if it is contrary to: ‘(a) fundamental policy of Indian law; or (b) the interest of India; or
(c) justice or morality; or (d) in addition, ifit is patently illegal’. One can no longer challenge an international
arbitration award in India on the basis that it is ‘patently illegal’, however, following a 2015 amendment to
the Indian Arbitration and Conciliation Act 1996 and the 2013 decision of the Indian Supreme Court in Shri
Lal Mahal Ltd v Progetto Grano Spa (Civil Appeal No 5085 of 2013 at [27]). A domestic award may still be
ofise in India on the basis that it is patently illegal: Arbitration and Conciliation (Amendment) Act 2015
ndia), s 18.
241 In contrast, there appears to be scope for arguing under Chinese law that a decision of an arbitral tribunal
which is deemed to be inconsistent with a binding ruling of a Chinese court violates the public policy of China.
In Taizhou Haopu Investment Co Ltd v Wicor Holding AG [2015] Tai Zhong Shang Zhong Shen Zi, No 00004
(China) the Taizhou Intermediate People’s Court refused recognition and enforcement of an ICC award on the
ground that the award was inconsistent with a prior ruling of the Jiangsu High People’s Court and thus con-
trary to the public interest of China, whereas the US Federal Court in Telenor Mobile Communications v Storm
LLC’ 524 F Supp 2d 332 (SDNY 2007) adopted a narrow view of public policy and upheld an arbitral award
notwithstanding a prior decision of a Ukrainian court which ruled that the arbitration agreement was invalid.
The Federal Court held at [357] that even if the arbitral award was in conflict with Ukrainian law, the decision
of the tribunal and that of the US court would have to be ‘directly contrary to foreign law in such a way to make
Comptia with one necessarily a violation of the other’.
242 Coal & Oil Co LLC v GHCL Ltd [2015] SGHC 65 at [63].

48
 C. Challenge and Enforcement of Awards in Singapore

[he narrow conception of public policy in the context of arbitration endorsed under 2.110
Singapore law was aptly demonstrated in the 2011 case of AJU v A/T? In that case, an
award was allowed to stand despite its subject matter being allegedly illegal under both Thai
and Singapore law, being the law of the place of performance and the law of the seat of the
arbitration, respectively. The Singapore Court ofAppeal reversed the High Court's decision
to set aside the SIAC award, ruling that the High Court Judge was wrong to re-open the
tribunal's finding of fact that the transaction was not illegal under the relevant law.244
Accordingly, as a matter of Singapore law, the courts will not second-guess a tribunal’s find- 2.111
ings of fact as to whether a contract is illegal.24° The legal consequences of the facts, and in
particular whether an illegality as found by the tribunal constitutes a violation of public
policy, however, is subject to curial review by the Singapore courts.?46
More recently, the Singapore High Court rejected an argument that a delay of 19 months 2.112
between the parties’ closing submissions and the issuance of an arbitral award was a violation
of public policy.*4” When doing so, the High Court noted that the public policy exception
to the enforceability of awards is ‘intended to capture: matters of general — rather than par-
ticular interest’.?4* For instance, while an alleged failure by the tribunal to respect the terms
of an agreement of the parties may frustrate those parties, it will not be ‘clearly injurious to
the public good’? and thus is not a basis for setting aside an award under the public policy
exception.

5. Enforcement of a Singapore award in Singapore

A Singapore award, whether made under the AA or IAA, is enforceable in Singapore with the 2.113
leave of the High Court in the same manner as a court order or judgment.?°
There are two stages to the enforcement of an award in Singapore. First, an application for 2.114
leave to enforce the award is made ex parte to a Judge in Chambers?*' or to the Registrar of
the High Court. The application must be supported by an affidavit complying with certain
prescribed requirements. The High Court will grant the order giving leave to enforce as long

243 (2011) 4SLR739 (Singapore Court of Appeal), the party names have been altered in the published deci-
sion in order to preserve the confidential nature of the arbitration.
244 The parties were alleged to have engaged in an illegal attempt to stifle Thai criminal proceedings. AJU v
AJT (n 235) at (70):
... the Tribunal’s findings in the present case as to the intention of the Appellant and the Respondent
when they signed the Concluding Agreement, which intention was reflected in cl 1 thereof, are find-
ings of fact which are not correctable as they are final and binding on both parties. Public policy,
based on the alleged illegality of the Concluding Agreement, was not engaged by such findings of
fact. Hence, the Judge should not have reopened the Tribunal’s findings.
245 ReLandau, Toby Thomas QC [2016] SGHC 258 at [69]: ‘It is clear that if a tribunal finds as a fact that
a contract is not illegal, a court cannot substitute its own factual findings in place of that (AJU vA/T [2011] 4
SLR 739 at [65])’.
246 AJU v A/T (n 235) at [67-69].
247 Coal with delayin the rendering
& Oil Co(n 242), at[63]. The High Court noted that a party concerned
of an award should make an application pursuant to Article 14 of the 1985 UNCITRAL Model Law (or SIAC
& Oil Co (n
Rule 17.3) for the mandate of the tribunal to be terminated before the award was released: Coal
at[65].
242)
248 Coal & Oil Co(n 242) at [62].
249 PT Asuransi Jasa Indonesia (Persero) v Dexia Bank SA at (59).
(n71)
250 JAA,s 19; AA, s 46(1).
251 In other words, the proceedings will not be open to the public.
49
 Legal Framework for Arbitration in Singapore
nea

as the formal requirements are met without engaging in a substantive review of whether the
award ought to be enforced.?*?
2.115 Second, once an enforcement order has been obtained, it must be served on the debtor (ie
the losing party).?53 The debtor may then apply to set aside the order within prescribed time
limits.254 The award cannot be enforced until this period of time has expired or, if there is an
application to set aside the order, until the application is determined.
2.116 As explained in paragraphs [2.28] to [2.33], even ifa party does not apply to setaside an award
within the prescribed time limits, it may still resist the enforcement of an award rendered
in Singapore under the IAA by raising grounds found in Art 36 of the 1985 UNCITRAL
Model Law.?°°

6. Enforcement of a New York Convention award

2.117 As already mentioned, Part III (sections 27-33) of the IAA gives effect to Singapore's obliga-
tions under the New York Convention.?5¢ Singapore has adopted the reciprocity principle
whereby its obligations under the New York Convention are restricted to awards rendered in
fellow New York Convention signatory States.?5” Thus, Part III of the IAA only applies to the
enforcement of a ‘foreign award’, which is defined in section 27(1) of the IAA as an ‘award
made in pursuance of an arbitration agreement in the territory of a [New York] Convention
country other than Singapore’.
2.118 An application for the recognition and enforcement of a ‘foreign award’ is first made ex parte
to a High Court Judge in Chambers or to the Registrar. It should be accompanied by an

252 Aloe Vera ofAmerica, Inc v Asianic Food (S) Pte Ltd [2006] 3 SLR(R) 174 (Singapore High Court);
Denmark Skibstekniske Konsulenter A/S I Likvidation v Ultrapolis 3000 Investments Ltd [2010] 3 SLR 661
(Singapore High Court).
253 The creditor must serve on the debtor the order granting leave to enforce an award either personally or
by sending a copy of it to the debtor's usual or last known place of residence or business or in such other man-
ner as the court may direct. Service of the enforcement order outside Singapore does not require leave of the
court, although it must comply with Rules of Court Order 11, Rules 3, 4, and 6. For awards under the AA, see
Supreme Court's Rules of Court (Cap 322, Rule 5, 2014 Rev Ed) (Singapore) RSC Ord 69 r 14, which sets out
the relevant rules on how the application to enforce the award should be made and how an order granting leave
to enforce the award should be served on the debtor. For awards under the IAA, see RSC Ord 69A r 6.
254 If the order is served in Singapore, the debtor has 14 days after service to challenge the order. Ifthe order
is served out of jurisdiction, the period is fixed by the court. For awards under the AA, see RSC Ord 69 r 14(4).
For awards under the IAA, see RSC Ord 69A r 6(4).
255 While Art 36 of the 1985 UNCITRAL Model Law is excluded from the IAA pursuant to IAA, s 3(1), the
Court of Appeal ruled in the Astro decision (n 8) that Art 36 reflects Singapore common law.
256 The Arbitration (Foreign Awards) Act 1986 (No 24 of 1986) (Singapore) was enacted to give effect to the
New York Convention. It was subsequently repealed and subsumed within the IAA as LAA, Part III.
257 New York Convention, Art 1(3) permits signatory States ‘on the basis of reciprocity [to] declare that
it will apply the Convention to the recognition and enforcement of awards made only in the territory of
another Contracting State’. Singapore has made such a declaration: UNCITRAL, ‘Status—Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958)’, available at <http://www.unci-
tral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html> (accessed 1 November 2016). It
was for this reason that the Singapore Parliament decided to exclude Part VIII of the UNCITRAL Model
Law from the IAA as otherwise all foreign awards, not just those rendered in a state party to the New York
Convention, would be enforceable under the terms of Article 35 of the UNCITRAL Model Law, which mir-
rors Articles I and III of the New York Convention. This limited objective of the Parliament when it excluded
Chapter VIII of the 1985 UNCITRAL Model Law from the IAA was a key factor in the Singapore Court of
Appeal’s finding in Astro (n 8) that Art 36 of the Model Law reflected the common law of Singapore.

50
 7 : :

C. Challenge and Enforcement of Awards in Singapore (UL

affidavit which must comply with certain prescribed requirements.2% If the order is granted,
it must then be served on the debror.?°9
Thereafter, the only grounds the debtor has for resisting the enforcement of a ‘foreign award’ 2.119
are those set out in Art V of the New York Convention, which are reproduced at section 31 of
the IAA. These are comparable to the grounds for setting aside an award under Art 34 of the
1985 UNCITRAL Model Law (ie for reasons relating to jurisdiction, procedural fairness,
and public policy).? The High Court will conduct a hearing ofthe issues that fall for consid-
eration under section 31 of the [AA and make its findings on the balance of probabilities."
Fraud, corruption, or a breach of the rules of natural justice do not constitute (express) 2.120
grounds for refusing to enforce a ‘foreign award’ despite being bases upon which a set-aside
application can be made for Singapore awards rendered under the LAA or AA.26 With that
said, the public policy exception will allow an award tainted by fraud or corruption to be
refused recognition and enforcement in Singapore. Further, the rules of natural justice are
reflected in section 31(2)(c) of the LAA, which allows an award to be refused recognition and
enforcement if a party was not given proper notice of the appointment of an arbitrator or of
the arbitration proceedings or was otherwise unable to present its case.

7. Enforcement of a non-New York Convention award

As noted in paragraph [2.117], Part III of the LAA only provides for the enforcement 2.121
in Singapore of awards rendered in a New York Convention signatory State (other than
Singapore). There are two other ways in which a foreign award can be enforced in Singapore.
First, a party may rely on Singapore legislation for the reciprocal enforcement of court judg-
ments, which allows an award to be enforced if it has become enforceable as a judgment of
certain foreign courts.” Second, the AA provides a means for the enforcement of foreign
awards made in non-New York Convention signatory States.?®
The AA provides that awards rendered in Singapore or elsewhere may be enforced in 2.122
Singapore in the same manner as a judgment or order with the leave of the High Court.?®
No guidelines or requirements are prescribed on when leave will be granted or refused. The
High Court, however, is likely to be guided by the grounds for refusing recognition and

258 [AA, s 30(1). The affidavit should exhibit supporting documents (namely, an authenticated original or
certified copy of the award, the original arbitration agreement or certified copy thereof, and where the award or
agreement is in a language other than English, a certified translation in English). RSC Ord 69A r 6.
259 RSC Ord 69A r 6(2).
260 TAA, s 31.
261 Strandore Invest A/S v Soh Kim Wat {2010] SGHC 151 (Singapore High Court).
262 IAA, s 24; AA, s 48.
263 IAA, s 31(4). See (n 71).
264 IAA, s 33; Reciprocal Enforcement of Judgments Act (Cap 265, 2001 Rev Ed) (Singapore); Reciprocal
Enforcement of Commonwealth Judgments Act (Cap 264, 1985 Rev Ed) (Singapore). The jurisdictions which
have reciprocal enforcement arrangements with Singapore are Australia, Brunei Darussalam, Hong Kong, India
(with the exception of theState ofJammu and Kashmir), Malaysia, New Zealand, Pakistan, Papua New Guinea,
Sri Lanka, the United Kingdom, and the Windward Islands.
265 AA, s46(3) read with s 46(1). AA, s 46(1) provides that an award ‘made by thearbitral tribunal pursuant
to anarbitration agreement may, with leave ofthe Court, be enforced in the same manner asa judgment or order
of the Court to the same effect’. AA, s 46(3) provides thatnotwithstanding s 3(which relevantly provides that
the AA only applies toarbitrations where the place ofarbitration is Singapore), ‘subsection (1) shall apply toan
award irrespective of whether the place ofarbitration isSingapore or elsewhere’.
286 AA,
646(1). LiSKARY
51 NARAYAN RAO MELG.RI
National Law School
 Legal Framework forArbitration in Singapore

enforcement of an award under Art V of the New York Convention (ie section 31(2) of
the IAA).

8. Enforcement of an ICSID award in Singapore

2.123 Awards rendered pursuant to the ICSID Convention may be enforced in Singapore in
accordance with the Arbitration (International Investment Disputes) Act.?6” The procedures
for enforcement are set out in the Arbitration (International Investment Disputes) Rules?®
and Order 67 of the Singapore Supreme Court’s Rules of Court (RSC).?6°

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»
 a
INTRODUCTION TO SIAC ARBITRATION

A. Brief History of SIAC 3.02 G. SIAC Domestic Arbitration Rules 3.33

l. ‘The establishment of SIAC 3.02 H. Ad Hoc Arbitrations, Bunker Claims
2. The evolution of SIAC’s corporate and Drocedune Arb-Med-Arb Dini eant
Pre Sa 3.04 and Derivatives Arbitration 3.37
B. The 1991, 1997, and 2007 SIAC Rules 3.08 1. Ad hoc arbitrations 3.37
C. The 2010 SIAC Rules 3.16 2. Bunker claims procedure 3.38
D. The
E.
The 2016
2013 SIAC Rules
SIAC Rules
3.18 ys PA a la a
pe , cheniest arbitration 3.43
de I. Graphical Overview of the 2016
FE The SIAC Investment Arbitration Rules 3.27 SIAC Rules 3.44

This chapter provides a brief history of SIAC and its rules of arbitration. The key differences 3.01
between the six iterations of the (standard) SIAC Rules are identified, and the new rules for
investment disputes and other specialized rules introduced by SIAC are briefly discussed.

A. Brief History of SIAC

1. The establishment of SLAC
In 1986, the Singapore government's Economic Committee, chaired by the former Minister 3.02
for Trade and Industry (and Singapore’s current Prime Minister) Lee Hsien Loong, recom-
mended the establishment of an international arbitration centre in Singapore to help secure
Singapore's place as a regional centre for legal services. The government established a work-
ing party in 1987 to turn this ambition into reality.'
This led to the establishment of SIAC in March 1990 as a non-profit public company lim- 3.03
ited by guarantee under the control of the Singapore Ministry of Trade and Industry. Its two
shareholders were the Economic Development Board and the Trade Development Board.
The Singapore Academy of Law subsequently took over responsibility for SIAC from the
Economic Development Board and the Trade Development Board in August 1999.?

' Yong Tong Ang, ‘SIAC: Arbitration in the New Millennium’ (2000) Singapore Law Gazette, available at
<http://www.lawgazette.com.sg/2000-1/Jan00-23.htm> (accessed 27 September 2016).
2 Yong Tong Ang, ‘SIAC: Arbitration in the New Millennium’ (n 1).
53
 Introduction to SIAC Arbitration
eee
2. The evolution of SIAC’s corporate and management structure
3.04 SIAC’s relationship with the Singapore Academy of Law ended in April 2003.* Since that
time SIAC has been under the stewardship of the Singapore Business Federation, which rep-
resents the local Singapore business community, thereby giving SIAC access to a wide body
of potential arbitration users.‘
3.05 All SIAC functions were initially managed by a Board of Directors. In the early 2000s, all ten
members of the Board of Directors were based in Singapore.
3.06 Significant steps were subsequently taken to internationalize the SIAC Board. In March
2009, Professor Michael Pryles of Australia was named by the Singapore Business Federation
as Chairman of the SIAC Board of Directors. By 2012, eight of the 12 members sitting on
the SIAC Board were based outside Singapore. The SIAC Board was for a time supported by
a 15-member (voluntary) Council of Advisors.
3.07 SIAC adopted a new management structure on 1 April 2013. Specifically, the SIAC Court
was established to perform certain quasi-judicial functions and to determine matters of arbi-
tration policy (see Chapter 4, paras [4.09 to 4.12]). The President of the SIAC Court per-
forms the roles previously assigned to the SIAC Chairman under earlier editions of the rules
and Singapore law. There remains a Board of Directors which is responsible for corporate
governance issues. As explained in Chapter 4, the SIAC Court and Board of Directors are
supported by the SIAC Secretariat (see Chapter 4, paras [4.20 to 4.26]).

B. The 1991, 1997, and 2007 SIAC Rules

3.08 SIAC released its first set of international rules in September 1991. The 1991 SIAC
Rules were heavily influenced by the London Court of International Arbitration (LCIA)
Arbitration Rules (1985). Indeed, Rules 16 (conduct of the proceedings), 18 (place of arbi-
tration), 22 (witnesses), 23 (experts), 24 (additional powers of a tribunal), 25 (jurisdiction),
28 (correction of awards and additional awards), and 32 (exclusion of liability) of the 1991
SIAC Rules mirror almost word-for-word the corresponding provisions of the LCIA Rules
(1985). While not identical, other provisions of the 1991 SIAC Rules closely resemble the
LCIA Rules (1985).5 The remaining rules were modelled after the UNCITRAL Rules of
Arbitration 1976 (UNCITRAL Rules (1976)).®

3 L Boo, Singapore International Arbitration Centre (2nd edn, World Arbitration Reporter, 2010) Vol 3.
4 Speech by Senior Minister of State for Law, Indranee Rajah, at the opening ceremony of the Singapore
International Arbitration Centre's Mumbai office, 27 April 2013, available at <http://www.mlaw.gov.sg/news/
speeches/Speech-by-SMS-at-SIAC-Mumbai-opening.html> (accessed 11 October 2016).
> Rules 17 (submission of written statements and documents), 26 (deposits and security), and 27 (the
Award) of the SIAC Rules (1991) were largely based on the equivalent provisions of the LCIA Arbitration
Rules (1985) (LCIA Rules (1985)). Rules 19 (language of the arbitration) and 29 (costs) represent a fusion of
the equivalent provisions in the UNCITRAL Rules of Arbitration 1976 (UNCITRAL Rules (1976)) and the
LCIA Rules (1985). Although not expressly stated in the SIAC Rules (1991), SIAC arbitrators were paid based
on the time spent working on a case at a fixed hourly rate prior to the introduction of the SIAC Rules (2007),
consistent with long-standing practice under the LCIA Rules.
® Rules 2 (notice, calculation of periods of time), 3 (request for or notification of arbitration), 7 (appoint-
ment of sole arbitrator), 8 (appointment of three arbitrators), 9 (information to be furnished to the appointing
authority), 11 (challenge of arbitrators), 12 (notice of challenge), 13 (decision on challenge), 14 (replacement
of an arbitrator), 15 (repetition of hearing), and 30 (amount of the tribunal’s fees) of the SIAC Rules (1991)
follow closely, and at times are identical to, the corresponding provisions of the UNCITRAL Rules (1976).

54
 B. The 1991, 1997, and 2007 SIAC Rules

The SIAC Secretariat is required to play only a very limited role in the oversight of SIAC arbi- 3.09
trations under the 1991 SIAC Rules. Indeed, the parties were expected to drive the process
much as they would in an ad hoc arbitration. For instance, the 1991 SIAC Rules require the
parties to appoint their arbitrators directly and, in the event that one or more failed to do so,
the appointing authority chosen by the parties would appoint the arbitrator, failing which
the Chairman of SIAC had the power to make the appointment.’ The 1991 SIAC Rules also
do not provide for the scrutiny of awards by the Secretariat (although, in practice, a level of
review did take place).
SIAC introduced a revised set of international arbitration rules in October 1997 which 3.10
largely followed the structure and content of the 1991 SIAC Rules. The revisions reflected
SIAC’s growing maturity as an arbitral institution. They included procedures for multi-party
cases, an express power bestowed upon tribunals to grant interim relief, and an obligation
imposed upon the parties and the tribunal to treat all matters relating to arbitration proceed-
ings as confidential.
SIAC released a third set of international rules on 1 July 2007. Unlike the previous iterations 3.11
of the SIAC Rules, the 2007 SIAC Rules require the active administration of international®
cases by the SIAC Secretariat. Thus, the 2007 SIAC Rules require:
(a) the claimant and respondent to submit pleadings to the Registrar (rather than just serv-
ing the documents on each other as is the case under the 1991 and 1997 SIAC Rules);
(b the SIAC Chairman to make arbitral appointments (rather than the parties making the
—

appointments themselves or through an external appointing authority as required under

the 1991 and 1997 SIAC Rules); and
(c) the tribunal to submit all awards to the Registrar for scrutiny prior to their being issued
to the parties (whereas there is no formal scrutiny of awards under the previous rules).
The 2007 SIAC Rules were the first to anticipate that the SIAC Registrar will issue Practice 3.12
Notes from time to time to facilitate the efficient conduct of SIAC arbitrations. The Practice
Notes cover such things as the appointment and independence of arbitrators and tribunal
secretaries, the tribunal's fees and expenses, and the parties’ liability for the costs of the arbi-
tration.® The Registrar has also issued Practice Notes for ad hoc arbitrations supported by
SIAC."
The 2007 SIAC Rules also introduced a Schedule of Fees to determine the fees payable to 3.13
the tribunal and the Secretariat, with the fees calculated on an ad valorem basis (ie in pro-
portion to the amount in dispute, rather than with reference to the time spent working on
an arbitration)."'
While the earlier versions of the SIAC Rules were inspired by the LCIA and UNCITRAL 3.14
Rules, the influence of the International Chamber of Commerce (ICC) can be detected in
the 2007 SIAC Rules. In particular, the 2007 SIAC Rules required the tribunal for the first

7 SIAC Rules (1991), Rules 7-8. ; a

8 The 2002 SIAC Domestic Arbitration Rules were the first SIAC Rules to provide for the active adminis-
SIAC Secretariat (see para [3.33]).
by thens
tration of domestic arbitratio
2 SIAC Rules (2007), Rule 35.4.
10 See para [3.37] and Chapte17.
r
11 See
Ch 15.

55
 Introduction to SIAC Arbitration
i
time in SIAC practice to draw up a ‘Memorandum of Issues’ within 45 days of the parties
having submitted their written statements. This is similar to the Terms of Reference under
the ICC Rules.'?

As of 20 July 2017, there are three arbitrations being administered by SIAC under the 2007
SIAC Rules. Future arbitrations could be governed by the 2007 SIAC Rules if that is agreed
by the parties in their contract or in a fresh agreement at the commencement of the proceed-
ings (although that is not recommended)."

C. The 2010 SIAC Rules

The 2010 SIAC Rules were released following an industry-wide consultation process con-
ducted by a committee of international arbitration specialists.'* As of 20 July 2017, there
are 23 arbitrations pending before SIAC which are administered pursuant to the 2010
SIAC Rules.
The key features of the 2010 SIAC Rules include the following.
* No Memorandum ofIssues. While the parties and the tribunal can agree to summarize the
issues in dispute at any point during an arbitration, the requirement introduced in the
2007 SIAC Rules for a Memorandum of Issues to be prepared by the tribunal was omit-
ted from the 2010 and subsequent editions of the SLAC Rules (although the Terms of
Reference procedure remains a feature of ICC arbitration).
¢ New emergency arbitrator procedure. SIAC was the first institution in Asia to offer an emer-
gency arbitrator service as an alternative to seeking interim relief from an appropriate
court. This has proven to be popular, with over 50 applications for emergency interim
relief having been accepted by SIAC since July 2010. A party may apply for relief from an
emergency arbitrator at the time the Notice of Arbitration is filed or at any time prior to
the constitution of the tribunal. The 2010 SIAC Rules require the emergency arbitrator to
be appointed by the SIAC Chairman (subsequently changed retrospectively to the SIAC
President under the 2013 SIAC Rules) within one business day of the application (2010
SIAC Rule 26.2 and Schedule 1; see Chapter 13).
¢ New expedited procedure. A party may apply for an arbitration to be conducted on an expe-
dited basis if the amount in dispute is less than $$5 million, all parties agree, or in cases of
exceptional urgency'® (2010 SIAC Rule 5; see Chapter 6).

'2 ICC Rules (2017), Art 23. Subsequent editions of the SIAC Rules, however, do not require the prepar-
ation of aMemorandum of Issues.
'3 By way of illustration, two of the 188 cases referred to SIAC in 2011 were administered under the 1997
SIAC Rules. In one case, the contract was dated November 2005 and provided that the arbitration ‘shall be
submitted to SIAC and finally decided, under its rules as in force and effect on the date of this Contract’. In the
other case, the arbitration agreement provided for disputes to be resolved by arbitration ‘in accordance with
the SIAC Rules, 2nd Edition 1997’. In both cases, the parties were unwilling to agree to adopt the 2010 SIAC
Rules. Parties still occasionally provide in their agreements that early iterations of the SLAC Rules should apply,
although it is not recommended. .
"4 The Drafting Committee for the 2010 SIAC Rules comprised David Rivkin, Sundaresh Menon SC,
Judith Gill QC, Pierre-Yves Gunter, and John Savage.
'S SIAC was the third international arbitral institution in Asia to provide an expedited procedure after
HKIAC introduced Art 38 in the HKIAC Administered Arbitration Rules 2008 (HKIAC Rules (2008)),
and the Japan Commercial Arbitration Association (JCAA) introduced Rule 59 in the JCAA Commercial
Arbitration Rules 2008 (JCAA Rules (2008)).

56
 C. The 2010 SIAC Rules

Prima facie review of jurisdiction at an early stage of the proceedings. The respondent may
seek early termination of an arbitration by challenging whether there is prima facie evi-
dence ofa valid arbitration agreement. Such determinations were required to be made by
a committee of the SIAC Board ofDirectors, but are now made by the SIAC Court (2010
SIAC Rule 25.1; see Chapter 10).
New appointment procedure in multi-party arbitrations. Ifeither side in a dispute involving
more than two parties fails to nominate an arbitrator for a three-person tribunal, all three
arbitrators were to be appointed by the SIAC Chairman (which was subsequently changed
to the SIAC President) (2010 SIAC Rule 9; see Chapter 8).
Code of Ethics. Shortly before the 2010 SIAC Rules came into force, SIAC released
an official Code of Ethics for arbitrators.'® The Code, which has since been updated
in 2015, prescribes the obligations of an arbitrator, including in relation to his or her
duties to be impartial and independent and to devote sufficient time to the arbitra-
tion, communications with the parties, the calculation of fees and the arbitrator’s
obligation to respect the confidential nature of the arbitration (see Chapter 8 and
Appendix 3).
Mandatory preliminary meeting. The tribunal is required to conduct a preliminary meeting
with the parties as soon as possible after its constitution to determine the procedures most
appropriate and efhcient for the case (2010 SIAC Rule 16.3; see Chapter 9).
Default seat ofarbitration. As in the 2007 and 2013 SIAC Rules (but unlike the 2016 SIAC
Rules), in the absence of party agreement, the legal seat of the arbitration is deemed to
be Singapore unless the tribunal determines that another seat is more appropriate (2010
SIAC Rule 18.1; see Chapter 9).
Overriding obligation to conduct the proceedings efficiently. The tribunal, the SIAC Chairman
(now, President), and the Registrar must conduct arbitrations in ways that ensure the fair,
expeditious, economical, and final determination of the dispute (2010 SIAC Rules 16.1
and 36.2; see Chapters 9 and 16).
Inquisitorial powers. The tribunal may order bifurcation of an arbitration or direct the par-
ties to focus their presentations on certain issues if this facilitates the disposal of all or part
of the case (2010 SIAC Rule 16.4; see Chapter 9).
Award on costs. The tribunal has the express power to issue an award on costs (2010 SIAC
Rules 24(h) and 30.6; see Chapters 12 and 15).
Time limit for the award. The tribunal is required to submit its draft award to the Registrar
within 45 days of the date the proceedings are declared closed by the tribunal unless this
time is extended by the Registrar (2010 SIAC Rule 28.2; see Chapter 14).
Scrutiny ofawards. As in the 2007 SIAC Rules, the 2010 SIAC Rules require the tribunal
to submit the award in draft form to the Registrar for scrutiny. The Registrar may suggest
modifications to the form of the award and, without affecting the tribunal’s liberty of
decision, draw the tribunal’s attention to points of substance (2010 SIAC Rule 28.2; see
Chapter 14).
Corrections and additional awards. Under the 2010 (and subsequent) SIAC Rules, the
tribunal is not functus officio (ie without authority to act) immediately after rendering its

16 SIAC Code ofEthics for anArbitrator (2009). The Code reflects SIAC’s practice even before 2009 by which
prospective arbitrators were required to confirm their independence and impartiality prior to appointment.

57
 Introduction to SIAC Arbitration

final award. It may make corrections to any award or issue an additional award provided
prescribed time limits are met (2010 SIAC Rule 29; see Chapter 14).
Arbitrator fees. As with the 2007 SIAC Rules, arbitrators (and the Secretariat) under the
2010 SIAC Rules are paid with reference to the amount in dispute according to the SIAC
Schedule of Fees (2010 SIAC Rule 32; see Chapter 15).
Strengthened confidentiality provisions. Building on the introduction of confidentiality pro-
visions in the 2007 SIAC Rules, the 2010 SIAC Rules grant the tribunal the express power
to sanction a party fora breach of its confidentiality obligations, including issuing an order
for costs (2010 SIAC Rule 35.4; see Chapter 16). :
Domestic arbitrations. The 2010 SIAC Rules continue the practice of the 2007 SIAC
Rules of having special provisions for arbitrations expressly subject to the SIAC Domestic
Arbitration Rules. There is only one variation of the standard 2007 and 2010 SIAC Rules,
however, for arbitrations subject to the SIAC Domestic Arbitration Rules, namely that a
claimant or counter-claimant is expressly entitled to request a summary award ‘if there
is no valid defence’ to its claim or part of a claim or, failing which, an order requiring
the posting of security for all or part of a claim (2010 SIAC Rules, Schedule 2, Art 3; see
Chapter 18).

D. The 2013 SIAC Rules

3.18 The 2013 SIAC Rules came into force on 1 April 2013. At the time of writing, a significant
proportion of cases pending before SIAC (325 out of an active caseload of 800) are governed
by the 2013 SIAC Rules.
3.19 The 2013 SIAC Rules differ from the 2010 SIAC Rules in three notable respects. First, the
2013 SIAC Rules made organizational changes, including the establishment of the SIAC
Court and amendments to the management structure of SIAC (see Chapter 4). Second, the
2013 SIAC Rules made conforming retrospective amendments to the 2007 and 2010 SIAC
Rules to ensure that those rules are administered by the persons who have similar powers
under the 2013 SIAC Rules.
3.20 Third, a number of provisions in the 2013 SIAC Rules made express what was previously
implied or inherent in the powers of a tribunal under the 2010 SIAC Rules. The most note-
worthy are as follows.
* Investment treaty cases. The jurisdiction of SIAC is expressly extended to cover disputes
arising under an investment treaty or other instrument conferring jurisdiction upon SIAC
(2013 SIAC Rule 3.1(d); see Chapter 5 and 19),
* Notice ofArbitration. The Registrar is afforded a discretion to determine whether a claim-
ant has satisfied the requirements for a complete Notice of Arbitration (2013 SIAC Rule
3.3; see Chapter 5).
* Prima facie review ofjurisdiction. A new screening control was introduced in the 2013
SIAC Rules on preliminary objections made by a party to SIAC’s jurisdiction over
a
dispute. The 2013 (and 2016) SIAC Rules require the Registrar to determine wheth
er
an objection to the existence or validity (but no longer the scope) of an arbitration
agree-
ment or the competence of SIAC to administer an arbitration should be referr
ed to the
SIAC Court. If the Registrar determines that the objection has sufficient
merit to be

58
 D. The 2013 SIAC Rules

considered by the SIAC Court, the Court will then decide if it is prima facie satisfied that
a valid arbitration agreement under the SIAC Rules may exist (2013 SIAC Rule 25.1; see
Chapter 10).
Tribunal powers. Deriving inspiration from the Singapore Court of Appeal’s decision
in PT Prima International Development v Kempinski Hotels SA,'7 the 2013 SIAC Rules
provide (as do the 2016 SIAC Rules) that, ‘where appropriate’, tribunals may decide
any issue not expressly or impliedly raised in the parties’ submissions, provided that
such issue has been clearly brought to the notice of the other party and that the other
party has been given an adequate opportunity to respond (2013 SIAC Rule 24(n); see
Chapter 12).
Post-award interest. The prohibition on a tribunal’s ability to order post-award interest in
the 2010 SIAC Rules is omitted from the 2013 (and 2016) SIAC Rules (2013 SIAC Rule
28.7; see Chapter 14).
Publication ofredacted awards. Consistent with SIAC’s objective of making its arbitrations
more transparent and predictable, the 2013 SIAC Rules provide that SIAC ‘may publish
any award with the names of the parties and other identifying information redacted’ (2013
SIAC Rule 28.10). This practice continues under the 2016 SIAC Rules, although now
publication is subject expressly to the consent of the parties and the tribunal (2016 SIAC
Rule 32.12; see Chapter 14).
Advance on Costs. The 2013 SIAC rules also provide that separate advances on costs may
be fixed for the claimant and respondent in the event that counter-claims are filed (2013
SIAC Rule 30.2; see Chapter 15).
Decisions of the President, Court, and Registrar. A new tule was introduced in 2013 (and
retained in 2016) which stipulates that all decisions of the SIAC President, the SIAC
Court, and the Registrar are binding upon the parties and the tribunal and that the parties
agree to waive any right of appeal or review in respect of such decisions (2013 SIAC Rule
36; see Chapter 16).
The 2013 SIAC Rules amended retrospectively the 2007 and 2010 SIAC Rules to conform 3.21
to SIAC’s new organization structure. Specifically, the term ‘Chairman’ in the old rules
was redefined to mean ‘President’'® and the terms ‘Board’ and ‘Committee of the Board’
were redefined to mean ‘Court’.'? This was deemed necessary as the Board of Directors and
its Chairman under SIAC’s current structure are focused on corporate governance issues
(see Chapter 4), and thus need not be arbitration specialists. The changes were intended
to ensure that the persons tasked with arbitration supervisory functions under the 2013
(and 2016) SIAC Rules will be able to perform similar roles under the 2007 and 2010
SIAC Rules.
The legal efficacy of the retrospective amendments made in the 2013 SIAC Rules is 3.22
addressed in the first edition of this book. In short, many jurisdictions, Singapore included,
recognize that changes to dispute resolution procedures, such as those made in the 2013

17 PT Prima International Development v Kempinski Hotels SA [2012] 4 SLR 98 (Singapore Court of Appeal)
51.
Pare SIAC Rules (2013), Rules1.3 and1.4. SeeCh5, para[5.25].
19 SIAC Rules (2013), Rules 1.3 and 1.4.

59
 Introduction to SIAC Arbitration
er eee ern eee SER
ral in
SIAC Rules, can apply retrospectively”° provided that the changes are only procedu
nature2' and do not have a substantive effect on the rights of the parties.”

E. The 2016 SIAC Rules

3.23 This edition of A Guide to the SIAC Arbitration Rules has of course been motivated by the
release of the sixth edition of the SIAC Rules, which apply to all SIAC arbitrations com-
menced on or after 1 August 2016 unless the parties agree otherwise.”
3.24 The 2016 SIAC Rules were jointly produced by the SIAC Secretariat, the Rules Revision
Executive Committee, and various subcommittees of the SLAC Court under the leadership
of the SIAC President. A worldwide public consultation exercise was undertaken on the draft
rules, during which SIAC received nearly 1,000 comments from interested members of the
international arbitration community.

3.25 The structure and much of the content of the 2016 SIAC Rules will be familiar to users of the
2010 and 2013 SIAC Rules. The features carried across from earlier iterations of the rules,
albeit with some fine-tuning, include the following.

© Starting the arbitration. As with the earlier SIAC Rules, a party begins an arbitration by
filing a Notice of Arbitration with the SIAC Registrar and serving it on the opposing party
or parties. The Notice of Arbitration must include brief particulars of the dispute and
information sufficient to identify the parties and address certain procedural aspects of the
arbitration (2016 SIAC Rules 2—4, see Chapter 5).
¢ Arbitrators. As before, parties can nominate their own arbitrator. They can also challenge
an opponent’s nominee if circumstances exist that give rise to justifiable doubts as to the
arbitrator's impartiality or independence or if the arbitrator does not possess the requis-
ite qualifications on which the parties have agreed. The key changes in 2016 are that an
administration fee of $$8,000 has been set for arbitrator challenges*4 and the SIAC Court
must give a reasoned decision on all challenges to arbitrators (2016 SIAC Rules 9-18 and
Schedule of Fees; see Chapter 8).

20 While often considered synonymous, a retrospective law is quite different to a retroactive law. ‘A retro-
active statute operates backwards [ie it changes the law as of a certain point of time in the past]. A retrospective
statute [on the other hand] operates forwards ... in that it attaches new consequences for the future to an event
that took place before the statute was enacted.’ E A Driedger, ‘Statutes: Retroactive Retrospective Reflections’
(1978) 56 Canadian Bar Review 264, 268-9. For a discussion on the differences between retroactive and retro-
spective laws, see B Juratowitch, Retroactivity and the Common Law (Hart Publishing 2008) 6-12.
21 Black & Veatch Singapore Pte Ltd v Jurong Engineering Ltd [2004] 4 SLR(R) 19 (Singapore Court of
Appeal) paras 19-20; Car & Cars Pte Ltd v Volkwagen AG [2010] 1 SLR 625 (Singapore High Court) para 31;
AQZ v ARA [2015] 2 SLR 972 (Singapore High Court) para 125. See para [8.11] for a discussion of the appli-
cation of the Expedited Procedure to arbitration agreements concluded before 1 July 2010.
2 Gilbert Street Developers, LLC v LA Quinta Homes, LLC 174 Cal App 4th 1185, 94 Cal Rptr 3d 918 (2009)
(California Court of Appeal, US). See also Hancock Prospecting PtyLtd v Hancock [2013] WASC 290 at paras
219-31. In Hancock, the parties’ arbitration agreement excluded the operation of the UNCITRAL Model Law,
as was permissible pursuant to the International Arbitration Act 1974 (Australia) then in force. By the time the
arbitration began, however, the International Arbitration Act had been amended so that the parties could no
longer contract out of the operation of the UNCITRAL Model Law. The Supreme Court of Western Australia
found that, even though the arbitration had been commenced after the amendment came into force, the par-
ties had exercised their right to contract out of the application of the Model Law and to apply the amendment
retrospectively would deprive the parties of that right.
23 SIAC Rules 2016, Rule 1.2.
4 Or S$$8,560 for parties not based in Singapore due to the application of 7 per cent GST.

60
 E. The 2016 SIAC Rules

* Written submissions. SIAC has retained the approach adopted in the 2010 and 2013 SIAC
Rules (but not the 2007 Rules) of requiring a party to set out its case in full (with witness
evidence) at an early stage of the proceedings. Specifically, a party must usually set out in full
detail the statement offacts and law supporting its claim or defence before an evidential hear-
ing is held. This approach, which predominates in international arbitration practice, is in
contrast to the style adopted in court procedures in many common law jurisdictions, includ-
ing Singapore, where parties adopt a more limited pleading style at the outset which is then
followed by legal submissions and witness evidence (2016 SIAC Rule 20, see Chapter 9).
* Seat of the arbitration. Consistent with SIAC’s ambition of becoming a regional and global
force in international arbitration, the 2016 Rules omit the old rule that Singapore is the
default seat of a SIAC arbitration in the absence of an agreement of the parties. Now, the
tribunal will determine the seat of the arbitration in light of all the circumstances of the
case (2016 SIAC Rule 21.1, see Chapter 9).
* Hearings. Unless the parties have agreed to a documents-only arbitration, a tribunal shall
hold a hearing for the presentation of evidence and/or oral submissions if the tribunal
considers it appropriate or either party so requests (2016 SIAC Rule 24, see Chapter 9).
* Powers ofthe tribunal. SIAC has continued the approach of expressly prescribing many of
the powers of a tribunal in a single rule. The express powers include the ability to order the
disclosure of documents, the inspection of property, and the presentation, storage, sale, or
disposal of property (2016 SIAC Rule 27, see Chapter 12).
* Expedited procedure. The SIAC expedited procedure, first introduced in 2010, has been
refined. While a tribunal in an expedited case is still required to render a final award within
six months from the date the tribunal is constituted, the financial threshold for the appli-
cation of the expedited procedure has been increased. Specifically, a party can apply for
expedition if the aggregate sum in dispute (including the claim, counterclaim, and any
set-off defence) does not exceed S$6 million, rather than the ceiling of S$5 million applic-
able under the 2013 SIAC Rules. As under the 2010 and 2013 editions of the SIAC Rules,
an arbitration can also be expedited when the parties so agree or in cases of ‘exceptional
urgency’. Under the 2016 SIAC Rules, the tribunal may, in consultation with the parties,
determine whether a case conducted under the expedited procedure is to be decided on
the basis of documentary evidence only (2016 SIAC Rule 5, see Chapter 6).
Joinder ofadditional parties. The joinder procedure has been significantly developed under
the 2016 SIAC Rules. Under the 2013 SIAC Rules, only existing parties to an arbitration
could apply to join non-parties to the proceedings. The new rules also allow a non-party to
apply to be joined to the arbitration. With that said, given the confidentiality constraints
in arbitration, it remains to be seen how often a non-party could legitimately learn of the
existence of the arbitration and apply to join it, or would wish to do so. The joinder of an
additional party will be allowed where that party is prima facie bound by the arbitration
agreement or where all parties, including the party sought to be joined, consent to the join-
der. If an application for joinder of a party is made and granted after the constitution of the
tribunal, the joining party will be deemed to have waived its right to nominate an arbitrator
in the proceedings. The joining party does, however, retain the right to challenge an existing
member of the tribunal on the basis of a lack of qualifications or the existence of justifiable
doubts as to his or her independence or impartiality (2016 SIAC Rule 7.1, see Chapter 7).
+ Emergency Arbitrators. AnEmergency Arbitrator is to be appointed within one day (as opposed
to one business day under the 2013 SIAC Rules) of receipt by the Registrar of an application
for emergency interim relief and the payment of the administration fees and deposits. In the
61
 Introduction to SIAC Arbitration
eae rv ee UN NRPRRSSUD DEI
absence of any exceptional circumstances, the order or award of interim relief must now be
issued within a maximum of 14 days from the appointment of the Emergency Arbitrator (pre-
viously there was no time limit). The fees of an Emergency Arbitrator are fixed at $$25,000
under the 2016 SIAC Rules. In contrast, the fees under the 2013 SIAC Rules are capped at 20
per cent of a sole arbitrator's maximum fee, which could lead to a higher or lower fee depend-
ing on the amount in dispute (2016 SIAC Rule 30.2, and Schedule 1, see Chapter 13).
Award on costs. The 2016 SIAC Rules expressly allow a tribunal to issue an order or award
requiring a party (usually a respondent) which has failed to pay its share of the advance
on costs to reimburse the other party (usually the claimant) (2016 SIAC Rule 27(g), see
Chapter 12).
Fees. SIAC has retained its practice of charging fees on an ad valorem basis (ie based on
the amount in dispute). The administration fees and arbitrator fees prescribed in the 2013
SIAC Schedule of Fees continue to apply at the time of writing (other than the fees and
expenses of an emergency arbitrator, which have been revised) (see Chapter 15).

3.26 In addition to the aforementioned fine-tuning of existing procedures, SIAC has introduced
in 2016 three key innovations in response to the evolving needs of the arbitration community.
¢ Early dismissal ofclaims and defences. SIAC is reportedly the first international commercial
arbitral institution to introduce a procedure for the early dismissal of claims and defences.
The tribunal must decide any such application for early dismissal within 60 days of the fil-
ing of the application. It is an open question whether the non-participation of a respond-
ent in a SIAC arbitration could be grounds in itself for early dismissal of its defence and
thus pave the way for an effective default judgment in favour of the claimant (2016 SIAC
Rule 29.1; see Chapter 11).
Consolidation of multiple arbitrations. While not the first institution to do so, SIAC has
introduced a new mechanism for the consolidation of two or more arbitrations into a sin-
gle arbitration. This should help reduce time and costs for related disputes arising out of
the same or multiple contracts. An application for consolidation will be granted where all
parties to the dispute consent to the consolidation, where all the claims in the arbitrations
are brought pursuant to the same arbitration agreement, or where there is a sufficiently
close connection between the disputes in question and the arbitration agreements are
compatible (2016 SIAC Rule 8; see Chapter 7).
Multiple contracts. Parties can now pursue a single arbitration under the 2016 SIAC Rules
in relation to disputes which arise under more than one contract. When doing so, the
claimant will be deemed to have commenced multiple arbitrations (ie one in respect of
each arbitration agreement relied upon) and the Notice of Arbitration will be regarded as
an application to consolidate all such arbitrations into the one proceeding. The claimant
will nonetheless still only pay one case filing fee. This appears intended to ensure that
SIAC case numbers do not suffer as a result of SIAC’s willingness to have multiple-con-
tract disputes determined in the one arbitration. In contrast, the ICC would consider that
an arbitration arising under multiple contracts would be treated as a single arbitration for
administrative and statistical purposes (2016 SIAC Rule 6, see Chapter 7).

FE. The SIAC Investment Arbitration Rules

3.27 The SIAC Investment Arbitration Rules came into force on 1 January 2017. They are the
first full set of rules customized for international investment arbitration to be released by a
62
 E The SIAC Investment Arbitration Rules

commercial arbitration centre. They are designed to provide investors and states with an
alternative to, on the one hand, the ICSID Rules and UNCITRAL Rules typically used for
investment disputes and, on the other hand, the standard rules of commercial arbitration
institutions.

The SIAC Investment Arbitration Rules were jointly produced by the SIAC Secretariat, the 3.28
Rules Revision Executive Committee, the Subcommittee on Investment Arbitration, and
the Users Council. Again, the new rules benefited from an extensive worldwide public con-
sultation exercise. They will apply to disputes between commercial parties or ‘investors’, on
the one hand, and states or state-owned entities on the other, which arise under commercial
agreements, national legislation or international treaties.
The SIAC Investment Arbitration Rules are discussed in more detail in Chapter 19. They 3.29
are in large part based on the 2016 SIAC Rules with a number of modifications designed to
customize them for investment arbitration. These include the following:
* Amicus curiae submissions. Consistent with recent calls for greater transparency and con-
sideration of public interest in investment arbitrations, the SIAC Investment Arbitration
Rules grant a tribunal the discretion to allow a non-disputing party which has a ‘sufficient
interest’ in the proceedings to make submissions, have access to related documents, and
appear at any hearing. While this increased transparency will be welcomed by some users,
others may be wary of the loss of privacy and confidentiality which ordinarily attaches to
arbitration proceedings (SIAC Investment Arbitration Rule 29).
* Third-party funding. The SIAC Investment Arbitration Rules are the first rules of any
major arbitral institution to grant tribunals the express authority to require the disclosure
of any third party funding arrangements.”® Some third-party funders and other commen-
tators have expressed unease with this power. The SIAC Investment Arbitration Rules also

25 The Stockholm Chamber of Commerce (SCC) has issued a new set of its standard rules which also came
into force on | January 2017 and contains an appendix with limited modifications of its standard rules for
investor-state disputes. Consistent with the SIAC Investment Arbitration Rules, these modifications allow for
amicus curiae submissions by third parties and provide for a default tribunal of three arbitrators. In all other
respects, the standard SCC Rules will apply. Thus, for example, an investor may apply for interim relief from an
emergency arbitrator without the agreement of the respondent state or state-owned entity. The Shenzhen Court
of International Arbitration’s (SCIA) latest set of rules, which came into force on 1 December 2016, also allow
the SCIA to administer investor-state arbitrations under the UNCITRAL Rules but without any modifications
tailored for SCIA arbitration.
26 The Rules Revision Executive Committee was chaired by Gary Born, the SIAC President, and also
included Cavinder Bull SC, John Savage, Michael Pryles, Cao Lijun, Paul Friedland, and Lim Seok Hui. The
Subcommittee on Investment Arbitration was chaired by Claudia Annacker and also included Gary Born,
John Savage, Toby Landau QC, and Jan Paulsson. The members of the Users Council are listed at <http://
siac.org.sg/69-siac-news/456-siac-announces-the-formation-of-the-siac-users-council-regional-and-national-
committees> (accessed 16 February 2017).
27 This is arguablya lower threshold than that of the ICSID and UNCITRAL Transparency Rules which
instead require a ‘significant interest’ inorder for a third party to be granted permission to make submissions
(ICSID Arbitration Rules (2006), Rule 37.2(c)); UNCITRAL Rules on Transparency in Treaty-based Investor-
Arbitration (2014), Art 4.3(a)).
Oo caaphccesne deta emichaieethac tithe A ui dah pages
inherent powers as arbitrators (egMuhammet Cap & Sehil Injaat EndustriveTicaret Ltd Sti vTurkmenistan,
ICSID Case No ARB/12/6, Procedural Order No 3 dated 12 June 2015; and EuroGas Incand Belmont Resources
Inc v Slovak Republic, \CSID Case NoARB/14/14, Transcript ofthe First Session and Hearingon Provisional
Measures dated 17 March 2015).

63
 Introduction to SIAC Arbitration
ea pn tine eentirteaemntepmscnsn sem
allow a tribunal to take into account third party funding arrangements when apportioning
costs between the parties (SIAC Investment Arbitration Rules 24(1), 33.1, and 35).
° Emergency Arbitrators. Relief can be sought from an emergency arbitrator under the
SIAC Investment Arbitration Rules if both parties expressly agree. This strikes a balance
between, on the one hand, the desire of SIAC to offer parties to an investment dispute the
emergency arbitrator mechanism which has proven popular with commercial users since
its introduction into SIAC’s standard rules in 2010 and, on the other, the concern of some
states that they should not have their sovereign powers fettered on an interim emergency
basis (SIAC Investment Arbitration Rule 27.4 and Schedule 1). ;
° Confidentiality. SIAC may publish limited information regarding the existence of an
investment dispute even without the parties’ consent. This information will include,
among other things, the nationality of the parties but not their identity (although in the
case of a respondent state, this will effectively amount to the same thing). SIAC may also
publish redacted awards and decisions on challenges to arbitrators without the parties’
consent. All other matters relating to the proceedings will remain confidential, unless
otherwise agreed by the parties (SIAC Investment Arbitration Rules 37 and 38).
° Constitution of the tribunal. The parties may agree to a tribunal of any odd number of
arbitrators, including panels of five or more persons. In the absence of an agreement of
the parties, the default position under the SIAC Investment Arbitration Rules is that a
tribunal will consist of three arbitrators (whereas a sole arbitrator will be appointed under
the standard SIAC Rules in such circumstances). The SIAC Court will use a list procedure
when required to select a sole or presiding arbitrator on behalf of the parties. When doing
so, the SIAC Court will appoint a sole or presiding arbitrator of a different nationality to
the parties unless the parties have agreed otherwise. This formalizes the existing informal
practice under the standard SIAC Rules (SIAC Investment Arbitration Rules 5-8).
° Time limits. The SIAC Investment Arbitration Rules extend certain time limits in recog-
nition of the potential complexity of investment disputes and the delays that states may
experience in instructing counsel. For example, the period of time for a respondent state to
file its Response to the Notice of Arbitration is extended from 14 days under the standard
SIAC Rules to 35 days under the SIAC Investment Arbitration Rules (SIAC Investment
Arbitration Rules 4.1, 6.2, 7.2, 9.1, 9.2, 12.1, 13.1, 25.3(b), 29.4, and 30.3).
* Multiple contracts, joinder, consolidation or expedited procedure. A number of innovations
in the standard SIAC Rules (such as provisions for arbitrations arising out of multiple
contracts, joinder of third parties, consolidation of multiple arbitrations and expedited
proceedings which are required to be concluded within six months) have been omitted
from the SIAC Investment Arbitration Rules. Again, this is intended to encourage states
and state-owned entities, who may not be comfortable with these innovations, to agree to
arbitrate disputes under the SIAC Investment Arbitration Rules.
* Early dismissal ofclaims and defences. The SIAC Investment Arbitration Rules do include
the mechanism introduced in the 2016 SIAC Rules whereby a tribunal may dismiss a claim
or defence which is manifestly without legal merit or outside the jurisdiction of the tri-
bunal. Unlike the standard SIAC Rules, however, the SIAC Investment Arbitration Rules
also allow a tribunal to dismiss a claim or defence which is manifestly inadmissible (SIAC
Investment Arbitration Rule 26).
* Submissions. The SIAC Investment Arbitration Rules expressly require that all pleadings
be accompanied by any supporting witness statements and expert reports. In contrast,
there is greater flexibility under the standard SIAC Rules, with witness statements and

64
 G. SLAC Domestic Arbitration Rules

expert reports often being tendered after an initial pleadings phase (SIAC Investment
Arbitration Rule 17).

Arbitrations conducted under the SIAC Investment Arbitration Rules will be subject to 3.30
the same Schedule of Fees as for standard SIAC arbitrations. Accordingly, the administra-
tion costs and tribunal fees for an arbitration under the SIAC Investment Arbitration Rules
will generally be lower than the equivalent costs and fees of an arbitration under the ICSID
Rules. This may prove to be one of the more attractive features of the SIAC Investment
Arbitration Rules for investors and states alike.
Specifically, SIAC charges a fixed filing fee of $$2,000? as compared to a filing fee of 3.31
US$25,000 under the ICSID Rules. Further, the costs and fees of an arbitration under the
SIAC Investment Arbitration Rules will be calculated on the basis of the amount in dispute,
whereas [CSID charges fixed rates. For example, the one-off administration fees under the
SIAC Investment Arbitration Rules ranges from $$3,800 to $$95,000 depending on the
amount in dispute, whereas ICSID charges a fixed administration fee of US$35,000 for each
year of the arbitration. Arbitrator fees under the SIAC Investment Arbitration Rules are also
calculated on the basis of the amount in dispute, whereas arbitrators in ICSID proceedings
are entitled to a fee of US$3,000 per day.
As a consequence, arbitrations will generally be cheaper under the SIAC Investment 3.32
Arbitration Rules unless the amount in dispute is relatively high, in which case the fixed rates
under the ICSID Rules may be more economical.3°

G. SIAC Domestic Arbitration Rules

SIAC first released a set of rules for domestic arbitrations in May 2001, followed by a sec- 3.33
ond edition in September 2002.?' The establishment of different rules for international and
domestic arbitrations mirrored the bifurcated regime which still exists under Singapore’s
arbitration laws, whereby, as explained in Chapter 2, the LAA governs international arbitra-
tions in Singapore and the AA regulates domestic arbitrations, subject to the ability of parties
to opt in or out of the [AA and AA.
The SIAC Domestic Arbitration Rules required the SIAC Secretariat to actively administer 3.34
arbitrations for the first time. The claimant, for instance, was required to file originating
documents with the Registrar (previously, it was only required to serve them on the other
side) (Rule 6); the SIAC Chairman made arbitral appointments rather than the parties dir-
ectly (Rule 13), and a management fee was introduced to cover the Secretariat's expenses
(Rule 21). Other notable features included an option for the parties to conduct the arbitra-
tion on an expedited basis (Rule 3); a mechanism for the referral of domestic court cases to
SIAC without the need to start the proceedings again, thereby preventing such cases from

23 §$$2,140 for Singapore-based parties after the application of GST.

3% It is difficult to make a comparison to the costs of investment arbitrations under the UNCITRAL
Arbitration Rules as tribunals constituted under those rules are entitled to determine their own fees, subject to
the right oftheparties torefer thetribunal's determination toanappointing authority for review (UNCITRAL
Rules (2010),
Art41).
ei hdnass makcom: 1 September 2002), available at<http://www.siac.org.sg/
rules/RulesDomestic.pdf> (accessed 16 April 2014).
65
 Introduction to SIAC Arbitration

being statute barred (Rule 12); and the right of aclaimant to seek a summary award at an
early stage of the proceedings ‘if there is no valid defence to its claim’ (Rule 27). The 2002
SIAC Domestic Arbitration Rules were repealed by the 2007 SIAC Rules (see para [3.35]
and Chapter 18).
3.35 The 2007 SIAC Rules repealed the 2002 SIAC Domestic Arbitration Rules. Thereafter, until
the coming into force of the 2016 SIAC Rules, SIAC used the same rules for both domestic
and international arbitrations with one exception.3? As explained in Chapter 18, Schedule
2 of the 2007, 2010, and 2013 SIAC Rules provides that a claimant or counter-claimant in
an arbitration expressly subject to the 2002 SIAC Domestic Arbitration Rules may apply for
a summary award if there is no valid defence to its claim or any substantial part of its claim.
3.36 An equivalent schedule does not appear in the 2016 SIAC Rules. The effect of this is consid-
ered in Chapter 18.

H. Ad Hoc Arbitrations, Bunker Claims Procedure, Arb-Med-Arb

Protocol, and Derivatives Arbitration

1. Ad hoc arbitrations
27 SIAC is available to support ad hoc arbitration proceedings including acting as an appoint-
ing authority, managing the financial aspects of an ad hoc arbitration, and scrutinizing ad
hoc awards (see Chapter 17).

2. Bunker claims procedure

3.38 SIAC developed a Singapore Bunker Claims Procedure in 1992 in conjunction with the
Singapore National Shipping Association and the Port of Singapore Authority for determin-
ing small claims or single-issue marine bunker disputes. At least one case was administered
by SIAC under the Singapore Bunker Claims Procedure. The procedure now falls under the
supervision of the Singapore Chamber of Maritime Arbitration (SCMA).33

3. Arb-Med-Arb protocol
3.39 A combined Meditation-Arbitration Procedure was offered by SIAC and the Singapore
Mediation Centre (SMC), which specialises in the amicable resolution of domestic disputes,
from 2001 to 2014.
3.40 Following the creation in 2014 of the Singapore International Mediation Centre (SIMC),
which offers mediation services for the resolution of international disputes, SIAC joined
forces with the SIMC in the same year to offer a combined arbitration-mediation service
.*4
The SIAC-SIMC Arb-Med-Arb Protocol requires parties to commence proceedings
by filing
a Notice of Arbitration with the Registrar of SIAC.35 This must be accompanied
by a filing
fee of S$1,000 (as at the time of writing). The parties may also be required to
pay to SIAC an
epee
inn peoy a
® Even prior to the repeal of the 2002 SIAC Domestic Arbitration Rules,
parties to a domestic arbitration
could opt in to the standard 1991 or 1997 SIAC Rules (2002
SIAC Domestic Arbitration Rules, Rule 1.1).
“ SCMA <http://www.scma.org.sg> (accessed 4 November 2016).
SIMG, ‘SIAC-IMC Arb-Med-Arb Protocol’, available at <http
://simc.com.sg/siac-simc-arb-med-arb-
protocol/> (accessed 11 October 2016).
a4
38 SIAC-SIMC Arb-Med-Arb Protocol, para 2.

66
 lL. Graphical Overview of the 2016 SIAC Rules

advance on the estimated costs of the arbitration and mediation in accordance with SIAC and
SIMC’s respective Schedule of Fees.3* After a Response to the Notice of Arbitration has been
filed by the respondent and the tribunal constituted, the tribunal will stay the arbitration
while the parties attempt to resolve the dispute under the SIMC Mediation Rules.3” In that
way, the mediation will not jeopardize any limitation periods applicable to the arbitration.

If the parties cannot resolve the dispute by mediation within eight weeks (unless the deadline 3.41
is extended by the SIAC Registrar in consultation with the SIMC), the Registrar will inform
the tribunal that the arbitration shall resume in accordance with the SIAC Rules.38 If the
mediation is successful, the parties can record the terms of any settlement in the form of an
arbitral award on agreed terms.39
A model Arb-Med-Arb clause is available on SIAC’s website.*° 3.42

4. Derivatives arbitration
SIAC has also issued special rules for disputes arising from trading in derivatives. The SIAC 3.43
SGX-DT Arbitration Rules were released on 1 July 2005 and the SIAC SGX-DC Arbitration
Rules on 27 March 2006.*' As at the time of writing, no cases have been determined under
the derivatives rules.

I. Graphical Overview of the 2016 SIAC Rules

Figure 3.1 provides an overview of the typical stages in a SIAC arbitration conducted under 3.44
the 2016 SIAC Rules. The relevant rule for each procedure and the chapter in which it is
discussed are identified in the flowchart.
In addition, the 2016 SIAC Rules incorporate certain miscellaneous provisions (which are 3.45
not linked to specific stages of an arbitration). These provisions and other services offered by
SIAC are summarized schematically in Figure 3.2.

36 SIAC-SIMC Arb-Med-Arb Protocol, para 12.

37 SIAC-SIMC Arb-Med-Arb Protocol, para 5.
38 SIAC-SIMC Arb-Med-Arb Protocol, paras 6-8.
39 SIAC-SIMC Arb-Med-Arb Protocol, para 9; SIAC Rules (2016), Rule 32.10.
40 SIAC, ‘Model Clauses’, available at <http://www.siac.org.sg/component/content/category/67-model-
clauses> (accessed 11 October 2016).
41 The SIAC SGX-DT procedure is designed for derivative trading disputes, while the SIAC SGX-DC
procedure applies for derivative clearing disputes. Both procedures require an arbitration to be conducted
expeditiously, in English, by a sole arbitrator from the SIAC SGX-DT Panel or SIAC SGX-DC Panel, and be
seated in Singapore.

67
 Introduction to SIAC Arbitration

COMMENCING THE ARBITRATION

¢ Claimant files a Notice of Arbitration: Rule 3 (Chapter 5)
¢ Claimant may file multiple Notices of Arbitration in respect of disputes arising
under multiple related contracts and concurrently submit an application to
consolidate the arbitrations. Alternatively, it can submit a single Notice of
Arbitration covering all such disputes: Rule 6.1 (Chapter 7)
¢ Respondent files a Response within 14 days: Rule 4 (Chapter 5)
¢ The parties pay a deposit on the costs of the tribunal and the SIAC Secretariat:
Rule 34 (Chapter 15)
* Consideration should be given as to whether the arbitration should be expedited:
Rule 5 (Chapter 6)

OTHER ISSUES ADDRESSED PRIORTO THE CONSTITUTION OFTHE =

e A party or non-party may file an application with the Registrar for one or more
additional parties to be joined in an arbitration: Rule 7.1 (Chapter 7)
¢ A party may file an application with the Registrar to consolidate two or more
arbitrations: Rule 8.1 (Chapter 7)
e A party can raise a challenge to the existence or validity of the arbitration
agreement, which will be determined by the SIAC Court: Rule 28.1 (Chapter 10)

involves
© a sole arbitrator: Rule 10 (Chapter 8)
o three arbitrators: Rule 11 (Chapter 8) and/or
o multiple parties: Rule 12 (Chapter 8)
¢ Arbitrator nominations must be approved by the SIAC President: Rule 9.3
(Chapter 8)
¢ Arbitrators must be independent and impartial: Rule 13 (Chapter 8)
* Challenges to an arbitrator must be made within 14 days after receipt of notice of
the appointment of an arbitrator or after a party has become aware of the facts on
which the challenge is based: Rules 14-16 (Chapter 8)

A party may apply to the tribunal for the early dismissal of a claim or defence if it
is manifestly without legal merit or outside the jurisdiction of the tribunal: Rule
29.1 (Chapter 11)
* If the application for dismissal is allowed to proceed, the tribunal shall rule on the
application within 60 days of the filing of the application, unless otherwise
extended: Rule 29.4 (Chapter 11)

As noted above, before the tribunal is constituted, a party can raise a challenge to
the existence or validity of the arbitration agreement, which will be determined by
the SIAC Court: Rule 28.1 (Chapter 10)

Figure 3.1 Stages of an arbitration under the 2016 SIAC Rules

68
 Ll. Graphical Overview of the 2016 SIAC Rules

e Once constituted, the tribunal nas the competence to determine its Own
| jurisdiction: Rule 28.2 (Chapter 10)
e Any objection that the tribunal does not have jurisdiction must be raised no later
than the Statement of Defence or Statement of Defence to Counterclaim: Rule
28.3(a) (Chapter 10)
e Any objection that the tribunal is exceeding the scope of its jurisdiction must be
raised within 14 days of that becoming known: Rule 28.3(b) (Chapter 10)

A party can apply for interim relief from:

© an Emergency Arbitrator prior to the constitution of the tribunal: Rule 30.2
and Schedule 1 (Chapter 13)
© the tribunal, once it is constituted: Rule 30.1 and Schedule 1 (Chapter 13)
© acompetent court: Rule 30.3 (Chapter 13)

The tribunal must conduct the arbitration fairly, expeditiously and economically,
and make every reasonable effort to ensure the enforceability of the award: Rules
19.1 and 41.2 (Chapter 9)
e Apreliminary meeting will be held with the parties to determine the appropriate
procedures: Rule 19.3 (Chapter 9)
e The parties may agree to the seat and language of the arbitration: Rules 21-22
(Chapter 9)
e The tribunal has a range of powers when conducting the arbitration, including the
power to appoint its own expert: Rules 26-27 (Chapters 9 and 12)
® The tribunal determines the law applicable to the substance of the dispute unless
the parties have agreed otherwise: Rule 31 (Chapter 12)
e A party or non-party may apply to the tribunal for one or more parties to be joined
to an arbitration: Rule 7.8 (Chapter 7)
e A party may apply to the tribunal to consolidate two or more arbitrations: Rule 8.7
(Chapter 7)
e Parties submit written memorials and witness statements, which are usually
followed by an oral hearing: Rules 20, 24-25 (Chapter 9)
Witnesses are questioned at an oral hearing: Rule 25 (Chapter 9)

The tribunal must close the proceedings before an award is issued: Rule 32.1
(Chapter 14)
The Registrar scrutinises the draft award: Rule 32.3 (Chapter 14)
The Registrar fixes the tribunal’s fees: Rule 36 (Chapter 15)
The Registrar transmits copies of the award to the parties upon full settlement of
the costs of arbitration: Rule 32.8 (Chapter 14)
e The award is final and binding, although potentially subject to challenge under the
law of the seat of the arbitration: Rule 32.11 (Chapter 14)
e A party can apply for correction of an award within 30 days of receipt: Rule 33.1
(Chapter 14)
e A party can request an additional award for claims presented in the arbitration
which were not dealt with in the first award: Rule 33.3 (Chapter 14)
 Introduction to SIAC Arbitration

MISCELLANEOUS
¢ There is a general exclusion of liability for arbitrators and SIAC: Rule 38 (Chapter 16)
e The proceedings are confidential: Rule 39 (Chapter 16)
e A party that proceeds with the arbitration without promptly raising any objection
to a failure to comply with the SIAC Rules or any other applicable rules shall be
deemed to have waived its right to object: Rule 41.1 (Chapter 16)

e SIAC is available to support ad hoc arbitrations (Chapter 17)

¢ Specifically, SIAC:
serves as an appointing authority for ad hoc arbitrations seated in
Singapore
can manage the financial aspects of an ad hoc case, including collecting
deposits for the payment of arbitrators
can provide logistical support, including arranging hearing facilities

_DOMESTICARBITRATION
e Separate legislation (the AA) governs domestic arbitration in Singapore (Chapter 2)
e SIAC no longer has separate rules for arbitrations subject to the SIAC Domestic
Arbitration Rules (Chapter 18)

Figure 3.2 Additional provisions and services under the 2016 SIAC Rules

70
 +
SIAC CORPORATE STRUCTURE

A. The Board of Directors 4.04 C. The CEO 4.19

B. The SIAC Court 4.09 D. The Secretariat 4.20
1. The President of the SLAC Court 4.13 E. Overseas Liaison Offices 4.27
2. The Executive Committee 4.18

SIAC administers arbitrations for which it is responsible by appointing arbitrators, manag- 4.01
ing the financial and practical aspects of cases, carrying out supervisory functions entrusted
by the SIAC Rules, and scrutinizing and issuing awards."
As explained in this chapter, SIAC performs these roles through the following organs: 4.02

(a) the Board of Directors, which is under the supervision of a Chairman;

(b) the SIAC Court, which is led by a President;
(c) the Chief Executive Officer (CEO); and
(d) the Secretariat, which includes the Registrar.

In addition, SIAC has three overseas liaison offices which do not administer cases but pro- 4.03
mote SIAC as an arbitral institution.

A. The Board of Directors

SIAC is a company limited by guarantee (with the guarantee provided by the Singapore 4.04
Business Federation).? The corporate functions and governance of SIAC are managed by a
Board of Directors.
The Board currently comprises 11 Directors, made up of leading lawyers and business execu- 4.05
tives from Singapore, China, India, and the United Kingdom.? The Directors are appointed
for two-year terms. Davinder Singh was appointed Chairman of the Board in December
2016, replacing Lucien Wong.

1 SIAC Practice Note forAdministered Cases (2 January 2014) para 4.

2 ‘The Singapore Business Foundation is Singapore's apex business chamber with more than 22,000 mem-
bers: Singapore Business Federation, available at <http://www.sbf.org.sg/> (accessed 10 October 2016).
3 Ar the time of writing, the SIAC Directors are Davinder Singh (Chairman), Cavinder Bull SC (Deputy
Chairman), Guatam Banerjee, Nishith Desai, David Liu, Rajiv K Luthra, Michael Moser, Chelva Rajah SC,
John Savage , and Jeanette Wong.
Giles White,

71
 SIAC Corporate Structure
Se
functions
4.06 The Board of Directors and the SLAC Chairman had a number of quasi-judicial
the Board.
under the 2010 SIAC Rules, some of which were exercisable by Committees of
jurisdic-
This included deciding challenges to arbitrators and objections to the prima facie
the intro-
tion of SIAC.4 These functions are now carried out by the SLAC Court following
duction of the 2013 SIAC Rules.
4.07 Prior to 1 August 2016, the SLAC Chairman held a number of statutory powers under the
IAA and the AA, including the power to:
(a) act as the appointing authority for arbitrators pursuant to Arts 11(3)—-(4) of the 1985
UNCITRAL Model Law (ie where the parties to an arbitration do not reach an agree-
ment on the procedure for the appointment of an arbitrator);° and
(b) appoint conciliators.®

4.08 These powers have been transferred to the SIAC President.’

B. The SIAC Court

4.09 The key change made under the 2013 SIAC Rules, and the one which, in fact, inspired their
development, was the establishment of the SIAC Court to supervise arbitrations under the
SIAC Rules. The 18 members of the SIAC Court, at the time of writing, include leading arbi-
tration specialists from a diverse range of countries including the United States, the United
Kingdom, Bahrain, France, Switzerland, Belgium, China, India, Japan, Korea, Australia,
and Singapore.® Members of the SLAC Court are appointed for two-year terms.
4.10 The SIAC Court oversees the work of the SIAC Secretariat and performs certain quasi-judi-
cial functions previously performed by the SIAC Chairman (under the 2007 SIAC Rules)
and Committees of the Board (under the 2010 SIAC Rules). Specifically, the SIAC Court:
(a) decides applications for joinder;?
(b) decides applications for consolidation;"

4 SIAC Rules (2010), Rules 13.1 and 25.1.

> IAA, s 8(2); AA, s 13(8).
6 IAA, s 16(1).
7 Statutes (Miscellaneous Amendments) Act (No 16 of 2016), sections 2 and 11, read with AA, section
13(8) and IAA, sections 8 and 16. These changes came into force on 1 August 2016, the same day as the 2016
SIAC Rules. Pursuant to sections 8(3) and 16(2) of the IAA and section 13(9) of the AA, the Chief Justice of
Singapore has the power to appoint any other person to exercise the powers of the President of the SIAC Court
(previously those of the Chairman). In 2015, the Chief Justice of Singapore exercised his powers to thus appoint
the current President of SIAC, Gary Born, the two SIAC Vice Presidents, Cavinder Bull SC and John Savage,
as well as Dr Michael Pryles, current member of the SIAC Court and previous President of SIAC; Government
Gazette Notifications Nos 755 and 773 of 2015. Previously, in 2013, the Chief Justice of Singapore appointed
then President, Dr Michael Pryles, and Vice-Presidents, Cavinder Bull SC and John Savage; see Government
Gazette Notification Nos 758 and 765 of 2013, Each appointment is for a duration of two years.
® At the time of writing, the SIAC Court members are Gary Born, Cavinder Bull SC, John Savage, Claudia
Annacker, Lijun Cao, Paul Friedland, Emmanuel Gaillard, Bernard Hanotiau, Darius J*Khambata, Toby
Landau QC, Eun Young Park, Dr Michael Pryles, Lucy Reed, Harish Salve, Hiroyuki Tezuka, Ariel Ye, and
Alvin Yeo SC. Previous members included Hiroo Advani, Doak Bishop, Sungwoo (Sean) Lim, Julian Lew QC,
and Jan Paulsson.
9 SIAC Rules (2016), Rule 7.4.
10 SIAC Rules (2016), Rule 8.4.

72
 B. The SIAC Court

(c) decides challenges to arbitrators;"'

(d) decides objections to the prima facie jurisdiction of SLAC;"2
(¢) may override the default rule under the SIAC Investment Arbitration Rules that three
arbitrators should be appointed if the number of arbitrators is not agreed by the parties
and instead determine that a sole arbitrator is more appropriate for a particular dispute;"3
(f) provides advice to the President on the appointment of arbitrators under the SIAC
Rules;"4
(g) appoints arbitrators under the SIAC Investment Arbitration Rules;'5
(h) removes arbitrators under the SIAC Investment Arbitration Rules;'®
(i) determines whether SIAC should appoint an emergency arbitrator under the SIAC
Investment Arbitration Rules and, if so, makes the appointment;'”
(j) may request the tribunal and the parties to participate in a case management conference
under the SIAC Investment Arbitration Rules;'®
(k) provides advice, where appropriate, to the Registrar in relation to the scrutiny of draft
awards;"9
and
(1) is responsible for determining issues of SIAC arbitration policy and changes to the
rules.”
Unlike the ICC International Court of Arbitration, the SIAC Court does not hold monthly 4.11
plenary sessions. Instead, the SLAC Court’s functions are, for the most part, performed
through Committees of the Court comprising two or more members established to deal with
specific issues. The members of a Committee of the Court are appointed by the President.?"
A Rules Revision Executive Committee, chaired by Gary Born as President of the SIAC
Court, oversaw the process leading to the publication of the 2016 SIAC Rules.
While the Court conducts its work continuously, it convenes for a physical meeting at least 4.12
once a year to discuss SIAC business and issues of arbitration policy. The first conference was
held in early August 2013 at which the members considered, among other things, the publi-
cation of redacted arbitral awards, the revision of the SIAC Practice Notes, and the structure
of committees of the Court.

1. The President of the SIAC Court

The current President of the SIAC Court is Gary Born, who succeeded the Founder President, 4.13
Dr Michael Pryles, in April 2015.2 The President is assisted by two Vice-Presidents.”?

1) SIAC Rules (2016), Rule 16.1; SLAC Investment Arbitration Rules, Rule 13.1.
12 SIAC Rules (2016), Rule 28.1; SLAC Investment Arbitration Rules, Rule 25.1.
13, SIAC Investment Arbitration Rules, Rule 5.2.
14 SIAC Practice Note for Administered Cases (2 January 2014) para 65.
15 SIAC Investment Arbitration Rules, Rule 5.5.
16 SIAC Investment Arbitration Rules, Rule 14.3.
17 SIAC Investment Arbitration Rules, Rule 27.4 and Sch 1, Art 3.
18 SIAC Investment Arbitration Rules, Rule 16.7.
19 SIAC Practice Note forAdministered Cases (2 January 2014) para 31.
a ng
20 For instance, the SIAC Court decided inSeptember 2013 that reasons for a decision concerni chal-
lenge sean arbicracos underRuste13.1 should be given to the tribunal and the parties.
SIAC Rules (2016), Rule 1.3; SLAC Investment Arbitration Rules, Rule 1.5.
22 Dr Michael Pryles remains a member of the SIAC Court.
23 At the time ofwriting, theVice-Pre side
are Mr Cavinder and Mr John Savage.
Bull SCnts

73
 SIAC Corporate Structure

4.14 The SIAC President performs functions previously undertaken by the SIAC Chairman
under the 1991, 1997, 2007, and 2010 editions of the SIAC Rules. Thus, for disputes under
the SIAC Rules*4 the SIAC President:
(a) determines whether proceedings should be conducted on an expedited basis;?°
(b) appoints arbitrators under the SIAC Rules in consultation with at least two members of
the SIAC Court, and usually after discussions with members of the Secretariat;
(c) removes arbitrators;2”
and
(d) determines whether SIAC should appoint an emergency arbitrator and, if so, makes the
appointment.”
4.15 The SIAC President may appoint a SIAC Court member as an arbitrator only when the
member is nominated by a party or as a presiding arbitrator when nominated by the co-
arbitrators.”? If the SIAC President is nominated as an arbitrator in a SIAC case, the appoint-
ment is considered and confirmed by a SIAC Vice-President.3° These practices ensure the
integrity of SIAC without unduly deterring eminent arbitrators from becoming members
of the SIAC Court.

4.16 SIAC Court members must recuse themselves from all matters considered by the Court in
which they have a conflict of interest.
4.17 The role of the SIAC President can be performed by a SIAC Vice-President in circumstances
where the President is unavailable or otherwise unable to act.3' It is also noteworthy that the
functions of the SIAC President can be, and occasionally are, performed by the SIAC Registrar.

2. The Executive Committee

4.18 SIAC has an Executive Committee comprising the SIAC President and the two Vice-
Presidents. The Executive Committee advises the SIAC Court regarding candidates for
inclusion on the SIAC Panel of Arbitrators.

C. The CEO
4.19 The CEO of SIAC is responsible for the overall management and operations of SIAC, includ-
ing business development and marketing functions. The CEO reports to the Chairman of
the Board of Directors, and at the time of writing is Seok Hui Lim.

ESEEEMNGETGSEEEmEmerre ee
ee,
*4 To the extent that the following functions are applicable under the SIAC Investment Arbitration
Rules,
they are performed by the SIAC Court.
25 SIAC Rules (2016), Rule 5.2.
2° SIAC Rules (2016), Rule 9.3 and SIAC Practice Note for Administered Cases (2 January 2014)
27 SIAC Rules (2016), Rule 17.3 para 6.
78 SIAC Rules (2016), Rule 30,2 and Sch 1, Art 3.
29 SIAC Practice Note for Administered Cases (2 January 2014) para 7. The same rule is applie
while an LCIA Vice-President can only be appointed if nominated by the parties: ICC
d by the ICC,
Rules (2012), App II,
Art 2(2) and LCIA Arbitration Rules (2014), Art 5.10.
«
3° SIAC Practice Note for Administered Cases (2 January 2014) para 7. In contras
LCIA can only be appointed as a sole or presiding arbitrator, while the Presid t, the President of the
ent of the ICC can never be
appoines to an ICC tribunal: LCIA Arbitration Rules (2014), Art 5.10; ICC
Rules (2012), App II, Art 2(1).
' SIAC Rules (2016), Rule 1.3; SIAC Investment Arbitration Rules, Rule
1.5,
2 SIAC Rules (2016), Rule 1,3; SIAC Investment Arbitration Rules, Rule 1.5,

74
 D.. The Secretariat

D. The Secretariat

The Secretariat is a multinational and multilingual team responsible for the day-to-day 4.20
administration of disputes referred to SIAC, as well as the organization's business develop-
ment. The Secretariat has over 20 full-time employees and is led by a Registrar, who is cur-
rently Delphine Ho. Specialist teams cover the fast-growing markets of China, India, and
Korea, with branch offices located in each of those countries.
The Registrar, who reports to the SIAC President, has a wide range of responsibilities under 4.21
the SIAC Rules. The Registrar, often in consultation with the members of the Secretariat and
in particular the counsel assigned to a case:
(a) determines if a claimant's Notice of Arbitration is complete and therefore whether an
arbitration has begun;
(b) may override the default rule under the SIAC Rules that a sole arbitrator should be
appointed if the number of arbitrators is not agreed by the parties and instead determine
that the appointment of three arbitrators is more appropriate for a particular dispute;34
(c) screens any prima facie objections to the jurisdiction of SIAC and determines whether
such objections should be referred to the SIAC Court for determination;3°
(d) consults with the SIAC President in relation to the appointment of arbitrators;3¢
(e) fixes the terms of appointment of any arbitrators;3”
(f) may extend or shorten any time limits under the rules;38
(g) may ordera suspension of the proceedings while a challenge to an arbitrator is resolved;39
(h) is required to receive all notices, communications, and proposals filed by the parties
during the arbitral proceedings so as to allow the Secretariat to perform its oversight
function;*°
(i) scrutinizes awards (possibly in consultation with the SIAC Court*') and has the power
to suggest modifications to the form of SIAC draft awards and to draw the tribunal’s
attention to points of substance;*
(j) is responsible for the financial management of SIAC cases, including the fixing of the
Secretariat and tribunal fees, collecting and managing deposits paid by the parties
towards the costs of the arbitration, and the processing of tribunal fees and expenses;*?

33 SIAC Rules (2016), Rule 3.3; SIAC Investment Arbitration Rules, Rule 3.2.
34 SIAC Rules (2016), Rule 9.1.
35 SIAC Rules (2016), Rule 28.1; SLAC Investment Arbitration Rules, Rule 25.1.
36 SIAC Practice Note for Administered Cases (2 January 2014) para 6.
37 SIAC Rules (2016), Rule 9.6; SIAC Investment Arbitration Rules, Rule 5.8.
38 SIAC Rules (2016), Rules 2.6, 5.2(a), 7.1, 8.1, 10.1, 11.2, 11.3, 12.1, 12.2, 29.4, 32.3, 33.5, Sch 1, Art 9
and Sch 1, Art 14; SIAC Investment Arbitration Rules, Rules 2.5, 6.2, 7.2, 7.3, 8(c), 9.1, 9.2, 26.4, 30.3, 31.5,
Sch 1, Art 9, and Sch 1, Art 14.
39 SIAC Rules (2016), Rule 15.4; SIAC Investment Arbitration Rules, Rule 12.4.
40 SIAC Rules (2016), Rules 2.5, 3.1, 4.1, 5.1, 7.1, 8.1, 15.1, 33.1, 33.3, 33.4, and Sch 1, Art 1; SIAC
Investment Arbitration Rules, Rules 2.6, 3.1, 4.1, 8(c), 12.1, 20.2, 29.1, 29.2, 30.10, 31.1, 31.3, 31.4, and
Sch 1, Art l.

41 SIAC Prac for Administered Cases (2 January 2014) para 31.

Note tice
42 SIAC Rules (2016), Rule 32.3 and Sch 1, Art 9; SIAC Investment Arbitration Rules, Rule 30.3 and Sch
1, Art9.
43 SIAC Rules (2016), Rules 15.3, 34, 36.1, and Sch 1, Art 2; SIAC Investment Arbitration Rules, Rules
and Sch 1, Art 2;SIAC Practice Note for Administered Cases (2 January 2014) paras 10 and 12.
12.3, 32, 34.1,

75
 SIAC Corporate Structure

(k) may require proof of authority of any party's representatives;“

(1) can assess the parties’ legal costs if the tribunal does not do so;*°
(m) supervises SLAC counsel and associate counsel assigned to manage SIAC’s caseload; and
(n) can exercise the functions of the SIAC President.*®

4.22 The Registrar also periodically issues Practice Notes to supplement, regulate, and implement
the SIAC Rules.’” Their purpose is to make the practical aspects of SIAC arbitrations more
transparent and certain.*® The Practice Notes in force at the time of writing are annexed to
this book and are available on the SIAC website.

4.23 In addition to his or her responsibilities under the SIAC Rules, the Registrar has a number
of statutory functions under Singapore law, namely:
(a) the power to authenticate arbitral awards, including those handed down by non-SIAC
tribunals, and to certify copies of awards and arbitration agreements for the purposes of
enforcement of an award in a New York Convention signatory State;“? and
(b) the authority to assess the costs incurred by parties in an arbitration governed by the IAA
unless the award otherwise directs.5°
4.24 The Deputy Registrar>’ may exercise any powers of the Registrar under the SIAC Rules.*
The Deputy Registrar also has the statutory authority to authenticate awards and certify cop-
ies of awards and arbitration agreements.°?
4.25 The Registrar and Deputy Registrar are assisted by a number of counsel,*4 associate coun-
sel,>5 and Case Management Officers (CMOs)56

“4 SIAC Rules (2016), Rule 23.1; SIAC Investment Arbitration Rules, Rule 20.1.
45 TAA, s 21(1).
46 SIAC Rules (2016), Rule 1.3; SIAC Investment Arbitration Rules, Rule 1.5.
47 SIAC Rules (2016), Rule 1.3; SIAC Investment Arbitration Rules, Rule 40.3.
“8 L Boo and KL Theng, ‘Singapore International Arbitration Centre (SIAC)’ in L Mistelis, L Shore, and S
Brekoulakis (eds), Arbitration Rules—International Institutions (3rd edn, Juris Publishing 2010) 14.
49 TAA, s 19C(1); AA, s 59A(1); Arbitration (Appointed Persons under s 59A) Order 2009 (Government
Gazette Notification No S 650 of 2009), International Arbitration (Appointed Persons under s 19C) Order
2009 (Government Gazette Notification No S 651 of 2009); Arbitration (Appointed Persons under s 59A)
Order 2010 (Government Gazette Notification No S 734 of 2010); International Arbitration (Appointed
Persons under S 19C) Order 2010 (Government Gazette Notification No S 738 of 2010).
50 TAA, s 21(1).
*' At the time of writing, Kevin Nash is the Deputy Registrar and Centre Director.
52 SIAC Rules (2016), Rule 1.3; SIAC Investment Arbitration Rules, Rule 1.5.
53 IAA, s 19C(1); AA, s 59A(1); Arbitration (Appointed Persons under s 59A) Order 2009 (Government
Notification No S 650 of 2009); International Arbitration (Appointed Persons under s 19C) Order 2009
(Government Notification No S 651 of 2009); Arbitration (Appointed Persons under s 59A) Order 2010
(Government Notification No S 734 of 2010); International Arbitration (Appointed Persons under
s 19C)
Order 2010 (Government Notification No § 738 of 2010). For an explanation of the SIAC authentication
process, see Ch 2, paras [2.76-2.80].
:
* At the time of writing, Adriana Uson is the only counsel at SIAC.
°8 At the time of writing, the associate counsel who assist the Registrar and Deputy Registrar include
Janice
Lee, Aliona Bitkivskaja, Khyati Raniwala, Akanksha Bhagat, and Christopher Bloch.
56 At the time of writing, there are three Senior Case Management Officers (Carol Lim, Jamilah Basor,
and
Surtini Sakiman) and two Case Management Officers.

76
 E. Overseas Liaison Offices

Upon the filing of aNotice of Arbitration, a case is allocated toa SIAC counsel oranassociate 4.26
counsel, along with a CMO. They are the primary SIAC contacts for the parties. While the
Secretariat is not organized by geographical region or language, cases tend in practice to be
assigned to counsel or associate counsel with appropriate knowledge of the jurisdiction, laws,
or language relevant to a particular dispute. The CMOs support the counsel and associate
counsel in the carrying out of their day-to-day administrative duties.

E. Overseas Liaison Offices

SIAC has established overseas liaison offices in Mumbai,*” Seoul,** and Shanghai.*? The 4.27
liaison offices do not handle the administration of SIAC arbitrations, which is performed
exclusively by the Secretariat based in Singapore irrespective of the seat of arbitration or the
nationality of the disputing parties. Rather, the liaison offices seek to promote SIAC as an
arbitral institution in India, Korea, and China and indeed throughout the region.

In June 2016, SIAC agreed to establish a representative office in the International Financial 4.28
Services Centre in Gujarat International Finance Tec-City (‘the IFSC-GIFT’).® SIAC, the
Gujarat International Finance Tec-City Company Limited, and GIFT SEZ Limited plan to
collaborate to promote the use of arbitration, mediation, and other mechanisms to resolve
international commercial disputes in the IFSC-GIFT.
In addition, SIAC signed a memorandum of understanding in March 2016 with the 4.29
Authority of the Special Administrative Region of Oe-Cusse Ambeno (SAROA) and Special
Zones for Social Market Economy (ZEESM) in Timor-Leste (SAROA-ZEESM TL). This
formalized a collaboration under which SIAC will provide dispute resolution services for
SAROA-ZEESM TL in relation to contracts between SAROA-ZEESM TL and private sec-
tor firms, investors, and service providers.®'

57 The office was established in 2013 and is under the direction of Pranav Mago at the time of writing.
58 The office was established in 2013 and is led bySeah Leeatthe time of writing.
59 The office was established in March 2016 under the leadership ofSophia Feng.
60 Pursuant to aMemorandum of Agreement signed with Gujarat International Finance Tec-City Company
Limited and GIFT SEZ Limited: SIAC Press Release, available at <http://www.siac.org.sg/images/stories/
9032 pattie anemia acti Oa orandum%200f%20Agreement%20with%20GIFT_3%20June%20
Understanding with Oe-Cusse Administration’, available at <http://
ar ac ‘SIAC Signs Mecmmndam of
www.siac.org.sg/69-siac-news/478-siac-signs-memorandum-of-understanding-with-oe-cusse-administra-
tion> (accessed 11 October 2016).

77
 >
STARTING THE ARBITRATION
(SIAC RULES 1 TO 4)

A. Rule 1—Scope of Application and 6. Rule 2.6 5.44

Interpretation 5.02 C. Rule 3—Notice of Arbitration 5.45
1. Rulel.1 5.03 1. Rule3.1 5.46
2. Rule1.2 5.03 2. Rule3.2 5.69
3. Rule 1.3 5.21 3. Rule3.3 Tt
B. Rule 2—Notice and Calculation of 4. Rule3.4 5.75
Periods of Time 5.26 D. Rule 4—Response to the Notice of
Rule 2.1 5:27 Arbitration 5.76
Rule 2.2 5.38 1. Rule4.1 5.77
Rule 2.3 eMepy 2. Rule4.2 5.93
Rule 2.4 Je) 3. Rule4.3 5.95
Ne Rule
Vee 2.5 5.43

5.01 This chapter begins with a consideration of which version of the SIAC Rules should apply
to an arbitration and the meaning of certain defined terms (Rule 1). The SIAC notice provi-
sions (Rule 2) are addressed in part B. The matters to be covered by a claimant in a Notice
of Arbitration in order to start an arbitration (Rule 3) are then covered in part C. Finally,
the requirements for a valid Response to a Notice of Arbitration (Rule 4) are explained in
part D. Unless otherwise stated, all references to the SIAC Rules are to the 2016 version of
the rules.

A. Rule 1—Scope of Application and Interpretation

5.02 Rule 1 defines when the SIAC Rules will be applicable to a dispute.
1. Rule 1.1

Where the parties have agreed to refer their disputes to SIAC for arbitration or to arbitra-
tion in accordance with the SIAC Rules, the parties shall be deemed to have agreed that the
arbitration shall be conducted pursuant to and administered by SIAC in accordance with
these Rules.
.

2. Rule 1.2

These Rules shall come into force on 1 August 2016 and, unless otherwise agreed by the parties,
shall apply to any arbitration which is commenced on or after that date.

78
 A. Rule 1—Scope ofApplication and Interpretation

4. Parties must agree to the application of the SIAC Rules

Consent is a pre-condition of any arbitration. Thus, parties must agree to refer a dispute to 5.03
SIAC for the SIAC Rules to apply. Where there is such an agreement, the version of the SIAC
Rules in force at the time the arbitration commences will apply to the dispute, unless the
parties have agreed otherwise. '
The SIAC model arbitration clause provides that any dispute shall be determined in accord- 5.04
ance with the SIAC Rules ‘for the time being in force’. The Singapore High Court considered
the meaning ofthose (rather imprecise) words in its 2010 decision in Car & Cars Pte Ltd v
Volkswagen AG and another. The High Court held that they refer to the SIAC Rules in force
at the time of the commencement of the arbitration, not when the contract was concluded,
which might be a possible interpretation.3 The High Court reasoned:
As a matter of construction, it may be fairly argued that the employment of general phrase-
ology referring to rules ‘for the time being in force’ points to rules that presently cannot be
precisely identified. Were the intention to refer to rules existing at the date of the contract,
there would not have been need for the general words. The particular set of rules could easily
have been identified by name.4
The High Court recently affirmed the decision in Car & Cars in AQZ v ARA.5 Prakash Jheld 5.05
as follows.
‘There is a presumption that reference to rules of a particular tribunal in an arbitration clause
refers to such rules as are applicable at the date of commencement of arbitration and not at the
date of contract, provided that the rules contain mainly procedural provisions.®
Prakash J confirmed that this presumption arises even if the parties have not stipulated 5.06
in their arbitration agreement that the applicable rules shall be those ‘for the time being
in force’. Thus, in the absence of express words to the contrary, it is presumed that parties
intend to have their arbitrations conducted under the rules in force on the date the arbitra-
tion commences.’
b. Pathological clauses
As already mentioned, the SIAC Rules apply if that is agreed by the parties. 5.07

' In Black & Veatch Singapore Pte Ltd v Jurong Engineering Ltd [2004] 4 SLR(R) 19 (Singapore Court of
Appeal) para 3, the parties had agreed to arbitrate in ‘accordance with the rules of arbitration promulgated by
the [SIAC]’. The Court of Appeal held that in the absence of express language to the contrary, a (domestic)
arbitration will be governed by the arbitration rules in force at the time the arbitration is commenced, not at the
time the arbitration agreement was reached.
2 Car & Cars Pte Ltd v Volkswagen
AG and another (2010) 1 SLR 625.
3 This decision was affirmed in Chiam Heng Hsien v Chiam Heng Chow [2014] SGHC 119. At para 72, the
High Court reiterated that if parties intended to refer to rules existing at the date of contract, they ought to do
so expressly. A general reference to arbitration rules in an arbitration agreement would suggest that parties do
not intend to refer to the rules in existence at the time of their entering into the contract. The same approach
was followed by the English High Court in Honeywell International Middle East Limited v Meydan Group LLC
[2014] EWHC 1344, where at para 111, the Court found that in the absence ofclear words stipulating other-
wise, a reference to a particular set of rules is a reference to the arbitration rules of the relevant institution at the
time the arbitration commences.
4 Car& Cars v Volkswagen (n 2) para 31. See Ch 3, paras [3.21—3.22].
5 AQZ vARA [2015] 1 SGHC 49.
6 AQZvA 5) paras 125 and 127 (emphasis added).
(nRA
? AQZvARA (n 5) para 127.

79
 Starting the Arbitration

5.08 Occasionally, questions arise as to whether the parties have in fact agreed to the application of
the SIAC Rules or some other form of arbitration, or whether there is any agreement at all on
how their disputes will be resolved. Uncertain arbitration clauses are referred to as ‘pathological’,
a concept recently well described by Assistant Registrar Jordan Tan in HKL Group Ltd v Rizq
International Holdings Pte Ltd thus:*
But, in a case where the arbitration clause, although contractually valid, is defective and by this
I mean that after applying the general principles of contractual interpretation, or after rectifica-
tion as the case may be, the court is unable to discern the meaning of that clause either in part or
entirely, that clause is said to be pathological. There is no magic in that term. It merely describes
the clause as one which is defective (see Jnsigma Technology Co Ltd v Alstom Technology Ltd (2609)
3 SLR(R) 936 (‘Jnsigma’) at (37]). Whether that clause may or may not be upheld depends on the
nature and extent of its pathology.
5.09 When arbitral institutions, arbitrators, and indeed local courts are faced with pathological
clauses, Singapore law encourages an interpretation of the clause which gives effect, if possible,
to the parties’ (apparent) intention to arbitrate their disputes. By way of illustration, as explained
in Chapter 1, the Singapore High Court and Court of Appeal in the well-known Jnsigma case
upheld a hybrid arbitration agreement (which are not recommended) which provided that
SIAC shall resolve any disputes in accordance with the rules of another arbitral institution,
namely the ICC. The Court of Appeal in Jnsigma reasoned that where parties have evinced a
clear intention to settle disputes by arbitration, the court should give effect to such intention
‘even ifcertain aspects of the agreement may be ambiguous, inconsistent, incomplete or lacking
in certain particulars’.?
5.10 The Singapore High Court in the aforementioned HKL Group v Rizg case was faced with an
arbitration clause which provided for any disputes to be ‘settled by the Arbitration Committee
at Singapore under the rules of The International Chamber of Commerce ...’. The parties took
different views as to how the clause should be interpreted. Rizq argued that the court proceed-
ings should be stayed and the dispute arbitrated in accordance with the ICC Rules under the
administration of SIAC (as was allowed in Jnsigma). HKL, however, argued that the High Court
should remain seized of the matter as the arbitration agreement was so defective as to be inop-
erable. Neither party appears to have made the more compelling argument that the parties had
made an imperfect but nonetheless potentially enforceable reference to arbitration under the
ICC Rules to be administered by the ICC. That is, the words ‘Arbitration Committee’ could
have been interpreted as an intended reference to an ‘arbitral tribunal’. In the result however,
Jordan Tan AR accepted submissions on behalf of Rizq that SIAC could administer the arbitra-
tion under the ICC Rules."
5.11 Misspelt or inaccurate references to arbitral institutions or references to non-existent arbi-
tral institutions are routinely interpreted purposively by tribunals and courts. Thus,
the
following formulations have all been accepted as effective (albeit mistaken) referen
ces to the
ICC; ‘the official Chamber of Commerce in Paris, France’; ‘the Arbitration Commission
of the Chamber of Commerce and Industry of Paris’; and ‘a Commission of Arbitration
of

a
pet OTA eee
8 HKL Group Ltd v Rizq International Holdings Pte Ltd |2013] SGHCR 5, para
12.
9 Insigma Technology Co Ltd v Alstom Technology Ltd [2009] 3 SLR(R) 936, para 31.
' Tt is not known whether either party subsequently referred the case to SIAC,

80
 A. Rule 1—Scope of Application and Interpretation

French Chamber of Commerce, Paris’."' Other arbitral instirutions have similarly upheld
inaccurate arbitration agreements. For instance, arbitration clauses which referred to the
‘International Trade Arbitration Organization in Zurich’? and ‘international trade associ-
ation organization in Zurich'3were interpreted as effective references to the Zurich Chamber
of Commerce.

National courts and arbitral institutions have also brushed over an apparent mistaken refer- 5.12
ence to a ‘court in an otherwise clear reference to arbitration. Thus, a German court inter-
preted a reference to ‘the International Court of Arbitration (Internationales Schiedsgericht)
in Austria as a reference to the International Arbitration Centre of the Austrian Federal
Economic Chamber.'* The Chamber of Commerce and Industry of Geneva has accepted
jurisdiction in circumstances where the arbitration clause referred to the ‘Arbitration Court
at the Swiss Chamber for Foreign Trade in Geneva’? and the ‘Arbitration Court in Geneva
working besides the Swiss Chamber of Commerce’.'
The author of this chapter is familiar with a case in which a sole arbitrator was asked to inter- 5.13
pret an arbitration agreement providing for ‘Arbitration in the Courts of Singapore as per
rules of SIA’. While the claimant argued that the parties had intended to refer to the rules of
‘SIAC’; the respondent maintained that the dispute should be resolved under the GAFTA”
arbitration rules as the parties had expressly incorporated GAFTA terms into their contract.
With neither party having argued that the clause referred to the arbitration rules of the
Singapore Institute of Arbitrators (‘SIArb’), the claimant’s submission that the parties had
intended to refer their disputes to SLAC was upheld. In effect, the expression ‘Arbitration
in the courts of Singapore as per rules of SIA’ was interpreted as an intended reference to
‘Arbitration in the tribunals of Singapore as per rules of SIAC’. As Lord Hoffmann explained
in Investors Compensation Scheme Ltd v West Bromwich Building Society, a court or arbitrator
may conclude that the parties used the wrong words or syntax in their contract (or arbitra-
tion agreement):
The ‘rule’ that words should be given their ‘natural and ordinary meaning’ reflects the common
sense proposition that we do not easily accept that people have made linguistic mistakes, par-
ticularly in formal documents. On the other hand, if one would nevertheless conclude from
the background that something must have gone wrong with the language, the law does not
require judges to attribute to the parties an intention which they plainly could not have had.'®

"! Derains and Schwartz, A Guide to the New ICC Rules ofArbitration (2nd edn, Kluwer Law International
2005) 86.
'2 Preliminary Award in Zurich Chamber of Commerce of 25 November 1994, XXII YB Comm Arb 211,
216 (1997). But cf Award in Zurich Chamber of Commerce Case No 287/95 (25 March 1996), 14 ASA Bull
290 (1996) (refusing to proceed under clause referring to ‘Arbitration Commission in Switzerland’).
'3 Preliminary Award in Zurich Chamber of Commerce of 25 November 1994, XXII YB Comm Arb 211
(1997).
4 OLG Oldenburg [2006] Schieds VZ 223.
'S. Chamber of Commerce and Industry of Geneva; Interlocutory award in case no 117, 29 November 1996,
15(3) ASA Bulletin 534 (1997).
16 Chamber ofCommerce and Industry of Geneva, Interlocutory award, 30June 1987, 15(1) ASA Bulletin
122 (1997).
17 Grain and Feed Trade Association, which incorporates the GAFTA arbitration rules in its standard forms
of contract.
Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 at [913].
18 InvestorsCompensation
81
 Starting the Arbitration
ce eee
5.14 Finally, as explained in part A of Chapter 17, parties should be careful not to inadvertently
agree to ad hoc arbitration when their intention is to provide for institutional arbitration. By
way of illustration, in Taizhou Haopu Investment Co Ltd v Wicor Holding AG,"* the Taizhou
Intermediate People’s Court recently refused to recognize and enforce an ICC arbitration award
on the grounds that the parties had only agreed to arbitrate under the ICC Rules. The Taizhou
Court held that it could not be inferred that the parties had agreed to arbitration administered
by the ICC simply by their having agreed to the ICC Rules. Thus, an award administered by the
ICC was declared inconsistent with the parties’ agreement.
ate In response, SIAC amended Rule 1.1 in 2016 to make clear that an agreement ‘to arbitration
in accordance with the SIAC Rules’ is sufficient to invoke the authority of SIAC to administer
the arbitration.

c. Mandatory law
5.16 Rule 1.1 of the 2010 and 2013 version of the SIAC Rules provides that the application of the
SIAC Rules is subject to any contrary ‘mandatory provision of the applicable law of the arbitra-
tion from which the parties cannot derogate’.
517 This statement is omitted from the 2016 SIAC Rules. Nonetheless, the principle remains that
the rules of arbitration and the terms of the parties’ arbitration agreement must yield to any
applicable mandatory laws from which they cannot derogate.”°
5.18 There is no authoritative list of mandatory provisions in Singapore arbitration law from which
the parties or an arbitral institution cannot derogate. It is thus necessary to consider each pro-
vision of the IAA and the AA on its terms to see if it is mandatory or subject to the contrary
agreement of the parties.
5.19 By way of illustration, Rule 16.4 of the 2016 SIAC Rules provides that the SIAC Court's deci-
sion on a challenge to an arbitrator is ‘final and not subject to appeal’. Singapore law, however,
provides that a decision on an arbitrator challenge may be appealed within 30 days of a party's
receiving notice of the decision.2' An argument could be made that this is a mandatory provision
of Singapore law from which the parties cannot derogate by way of contract, and that it therefore
prevails over Rule 16.4 of the 2016 SIAC Rules to the extent of any inconsistency.”
5.20 In addition to the laws of the seat of the arbitration, SIAC tribunals may need to consider
other mandatory laws such as those of a party’s place of incorporation or the law of the likely
place of enforcement.”

'9 Taizhou Court, PR China, Case Docket Number: [2015] Tai Zhong Shang Zhong Shen Zi, No 00004,
Decision of 2 June 2016.
20 This principle is reflected in the introductory words of Rules 27 (see Ch 12) and stated expressly in other
institutional rules of arbitration. See for example: KCAB Rules (2016), Art 3(2); DIAC Rules (2013), Art 2.2;
KLRCA (2013), Art 1(3).
21 JAA, s 3(1); 1985 UNCITRAL Model Law, Art 13(3); AA, s 15(4).
2 Indeed, Art 13(1) of the UNCITRAL Model Law, which has the force of law in Singapore, provides that
‘parties are free to agree on a procedure for challenging an arbitrator, subject to [the right of a party to request a
court to review the challenged decision’. See P Binder, /nternational Commercial Arbitration and-Conciliation in
UNCITRAL Model Law Jurisdictions (3rd edn, Sweet & Maxwell 2010) para 3-077: “This provision is manda-
tory and applies even if the parties agree otherwise, It constitutes a party’s last resort ifall else fails, and therefore
has to be secured accordingly.’
?3 For a discussion on the mandatory laws to be considered by tribunals, see N Blackaby, C Partasides et al
(eds), Redfern and Hunter on International Arbitration (6th edn, OUP 2015) paras 3.128—3.130.

82
 A. Rule 1—Scope of Application and Interpretation

3. Rule 1.3
In these Rules—

Award’ includes a partial, interim, or final award and an award of an Emergency Arbitrator;
‘Committee of the Court’ means a committee consisting of not less than two members of the
Court appointed by the President (which may include the President);
‘Court’ means the Court ofArbitration of SLAC and includes a Committee of the Court;
‘Emergency Arbitrator’ means an arbitrator appointed in accordance with para 3 of Sch 1;
‘Practice Notes’ means the guidelines published by the Registrar from time to time to supple-
ment, regulate, and implement these Rules;
‘President’ means the President of the Court and includes any Vice President and the Registrar;
‘Registrar’ means the Registrar of the Court and includes any Deputy Registrar;
‘Rules’ means the Arbitration Rules of the Singapore International Arbitration Centre (6th
Edition, 1 August 2016);
‘SIAC’ means the Singapore International Arbitration Centre; and
‘Tribunal’ includes a sole arbitrator or all the arbitrators where more than one arbitrator is
appointed.
Any pronoun in these Rules shall be understood to be gender-neutral. Any singular noun
shall be understood to refer to the plural in the appropriate circumstances.
d. Defined terms in the 2016 SIAC Rules
Rule 1.3 of the 2016 SIAC Rules defines a number of terms used in the 2016 SIAC Rules, 5.21
which are for the most part self-explanatory.”4
Notably, the definition of an ‘Award’ in the 2007 and 2010 SIAC Rules states that it is a 5.22
decision ‘on the substance of the dispute’.?> This expression is omitted from the definitions
of an ‘Award’ in the 2013 and 2016 SIAC Rules. This appears to have been done in order
to ensure that a decision of an emergency arbitrator, which can only determine a request
for interim relief, can be characterized as an award. Indeed, the 2016 SIAC Rules for the
first time expressly provide that an award can be ‘interim’.6 As explained in paras [14.02 to
14.07], however, as a matter of Singapore law, an award must be a decision on the substance
of the dispute.?” Singapore legislation also expressly excludes a decision regarding a request
for interim relief from the definition of an award.” It is thus open to question whether a deci-
sion of an emergency arbitrator (or, for that matter, an award by an ordinary tribunal which
deals solely with a request for interim relief or an award which only relates to the tribunal's
jurisdiction) can be considered an award under Singapore law notwithstanding the terms of
Rule 1.3.79

It is also noteworthy that the ‘President’ is defined to include the Vice President and the 5.23
Registrar (with the ‘Registrar’ in turn defined to include the Deputy Registrar). Thus, cer-
tain functions under the SIAC Rules entrusted to the President of the SIAC Court, such as

24 The 2016 SIAC Rules includes three new definitions as compared to the 2013 SIAC Rules, namely the
definition for the terms ‘Emergency Arbitrator’, ‘Practice Notes’, and ‘Rules’.
25 SIAC Rules (2010), Rule 1.3; SIAC Rules (2007), Rule 1.2.
26 This brings the SIAC Rules in line with the ICC Rules which defines ‘Award’ to include ‘inter alia, an
interim, partial or final Award’: ICC Rules (2017) Art 2(v).
27 TAA, s 2(1); AA, s 2(1).
28 IAA, s 2(1); AA, s 2(1).
29 SeeCh 13, paras [13.23-13.24] andCh 14, paras [14.02~-14.07]. Nonetheless, SIAC appears to beof the
view that a decision of an emergency arbitrator can becharacterized as anaward, at least in some jurisdictions.

83
 Starting the Arbitration
eae nnn punt SUNT
the appointment ofone of more arbitrators under Rules 9 to 11, can be performed by the
Registrar and Deputy Registrar.

5.24 Rule 1.3 provides that any pronoun used in the SIAC Rules, which in the third person tend
to take the masculine (ie ‘his’) or gender neutral (ie ‘it’) form, shall be understood to be
gender-neutral. Singapore arbitration legislation referenced in this book follows a similar
approach.
e. Amendments to the 2007 and 2010 SIAC Rules
5.25 As explained in the first edition of this book, Rules 1.3 and 1.4 of the 2013 SIAC Rules
amend the 2010 and 2007 SIAC Rules, respectively, to ensure that the persons tasked
with supervisory functions under the 2013 rules (ie SIAC Court members, including the
President of the SIAC Court) could perform the equivalent roles under the 2007 and 2010
SIAC Rules. For instance, the SIAC Court was empowered to perform the tasks of the SIAC
Board of Directors under earlier versions of the rules.

B. Rule 2—Notice and Calculation of Periods of Time

5.26 Rule 2 stipulates the means for achieving service of documents during a SIAC arbitration
and how periods of time are to be calculated under the Rules.

1. Rule 2.1

For the purposes of these Rules, any notice, communication or proposal shall be in writing.
Any such notice, communication or proposal may be delivered by hand, registered post or
courier service, or transmitted by any form of electronic communication (including elec-
tronic mail and facsimile), or delivered by any other appropriate means that provides a record
of its delivery. Any notice, communication or proposal shall be deemed to have been received
if it is delivered: (i) to the addressee personally or to its authorized representative, (ii) to the
addressee’s habitual residence, place of business or designated address, (iii) to any address
agreed by the parties, (iv) according to the practice of the parties in prior dealings, or (v) if after
reasonable efforts, none of these can be found, then at the addressee’s last-known residence or
place of business.
5.27 The SIAC Rules provide a degree of flexibility to the parties for effecting service. Rule 2.1
allows service to be achieved by any means that provides a record of delivery to the other
party.*° Communications may be sent by hand, registered post, courier, or any form of elec-
tronic communication, including email.
5.28 The requirement in the 2010 and 2013 SIAC Rules that any notice must be in writing is
omitted from the 2016 SIAC Rules. As noted in the first edition of this book, not every com-
munication in an arbitration must be in writing in order for it to be effective. For instance,
parties can communicate their positions orally in a hearing. The delivery of such commu-
nications may be recorded in writing in a transcript of the hearing, subsequent correspond-
ence, or in an award rendered by the tribunal.

<

30 In contrast, the LCIA Arbitration Rules (2014) and the UNCITRAL Arbitration Rules (2010) require
a ‘record of its transmission’, which might be different than evidence of ‘delivery’, as required under the SIAC
Rules: (LCIA Rules (2014), Art 4.1; UNCITRAL Arbitration Rules 1976 (as revised in 2010) (UNCITRAL
Arbitration Rules (2010)), Art 2.1.

84
 B. Rule 2—Notice and Calculation of Periods of Time

lhe options available for effecting service

While a party can effect service through any means which provides a record of its actual 5.29
delivery to the other party, Rule 2.1 prescribes five methods of deemed service. First, there is
effective service ifaparty gives notice to the addressee personally or, pursuant to modification
introduced in the 2016 SIAC Rules, to the party’s authorized representative." It is a question
of fact whether a representative is authorized to accept service of documents during an arbi-
tration, of, more crucially, at the commencement ofan arbitration. As a matter of Singapore
law, once notice has been given that a party wishes to receive communications through its
counsel, the party should no longer be served directly subject to limited exceptions.22
Second, the SIAC Rules allow a party to serve documents on another party at his or her or its 5.30
habitual residence, place of business, or at an address designated by that party. This is likely
to include a designated email address.
Third, the parties can agree on an address which may be used to effect service. The parties can 5.31
specify this in their contract or during the arbitration.
The fourth option available for effecting service under the 2010, 2013, and 2016 SIAC Rules 5.32
(but not expressly available for arbitrations governed by the 2007 SIAC Rules) is to deliver
communications ‘according to the practice of the parties in prior dealings’. This would
include delivery to a previously used address, including successfully used email addresses.3?
It could also conceivably extend to novel methods of communication used previously by the
parties, such as through an intermediary.
Relying ona practice used in the parties’ prior dealings to achieve service poses little risk when 5.33
the receiving party is participating in the proceedings and acknowledges receipt of delivered
communications. It is potentially more problematic, however, if the receiving party is not
participating in the arbitration and subsequently denies the validity of the SIAC arbitration
agreement. Under the terms of the New York Convention, courts may refuse to recognize
or enforce an award if the party against whom an award is invoked ‘was not given proper
notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise
unable to present his case’.34 A party which relies on prior practice to evidence delivery of a
communication in circumstances where the receiving party subsequently denies receipt or
knowledge of its contents and the applicability of the SIAC Rules*> could, depending on the

3! English authorities have interpreted effective service under Section 76 of the English Arbitration Act 1996
(Service of notices etc) to include service onto an agent with actual or ostensible authority. In Sino Channel
Asia Ltd v Dana Shipping and Trading Pte Singapore and another (2016) EWHC 1118 (Comm), the claimant
applied to set aside the tribunal’s award under Section 72 of the English Arbitration Act 1996 on the ground
that the tribunal had not been properly constituted. The English High Court held (paras 49 and 55) that the
defendants had served the notice of arbitration on an individual who did not have authority, whether actual or
ostensible, to receive the notice. Thus, service was not effective and, consequently, the tribunal was not properly
constituted and the award set aside.
Protection (Professional Conduct) Rules 2015, Rule 7(3).
33 If emails can no longer be delivered to a previously used email address, the sender should consider using
one of the alternative means of service under Rule 2.
34 New York Convention, Art 5(1)(b). See also 1985 Model Law, Art 34(2)(a)Gi) and Art 36(1)(a)(ii), which
isincorporated into the LAA, pursuant to s 3(1) thereof.
35 If,conversely, Sc aeiniiinetstip SANE:Sialesinaccopontby chesecelvic perp,then it may be taken to
have agreed to the service of documents inaccordance with the SIAC Rules. See thediscussion ofAQZ v AZR
(n 5), where the Singapore High Court accepts this point, in Ch 6.
85
 Starting the Arbitration
een

significance of the communication and the applicable law, risk compromising any resulting
award. Thus, rather than relying on the SIAC Rules alone in such circumstances, a party may
wish to consider what would constitute effective service under the law of the place of incorp-
oration of the receiving party.*°
5.34 While parties to an arbitration in Singapore are not subject to the Singapore Rules of Court,
Singapore court procedures for service may provide some guidance in an arbitration context.
Personal service under the Singapore Rules of Court is effected by leaving a copy of the docu-
ment on the defendant if he is an individual and at the registered address (or by registered
post) if it is a company.?” As a general guide, it has been suggested that good personal service
of court documents requires a copy of the document to be handed over to the correct person;
the server to tell the person what the document contains; and the server to leave the docu-
ment in that person’s possession or control.
5:35 The fifth option available under the 2010, 2013, and 2016 SIAC Rules for effecting service
is to send a notice to the addressee’s last-known residence or place of business. Before doing
so, the sending party must first use ‘reasonable efforts’ to confirm whether the other places
for service available in Rule 2.1(i) to (iv) ‘can be found’. Such ‘reasonable efforts’? could
include a documented search of the internet, attempts to use previously successful methods
of communication, and/or a search of the relevant company’s register.“°

36 The need to consider local law requirements was highlighted in the Swedish case, Lenmorniiproekt OAO
v Arne Larsson & Partner Leasing Aktiebolg (O 13-09, 16 April 2010) (Swedish Supreme Court). The respond-
ent company had changed its address prior to the arbitration without informing the claimant despite being
explicitly required to do so under the contract. The request for arbitration was then sent to the respondent's
last known address as stated in the parties’ contract. The request for arbitration was received and signed for by
an unknown person but a later notice regarding the hearing was returned with the notation ‘no addressee at
the stated address’. The service was deemed to be satisfactory by the arbitral tribunal as the address used for the
respondent was the most recent known address. The Supreme Court of Sweden, however, held on appeal that
the respondent had not been made properly aware of the arbitral proceedings as no authorized representative of
the company had received the notice of arbitration. The ruling was based on the Swedish Arbitration Act (SFS
1999:116), s 54(2) which, like the New York Convention, Art 5(1)(b), and 1985 UNCITRAL Model Law, Art
34(2)(a)(ii) and Art 36(1)(a)(ii), provides that an award cannot be invoked against a party if that party proves it
had not been: (i) duly notified of the appointment of an arbitrator; (ii) duly notified of the arbitration proceed-
ings; or (iii) for some other reason was not capable of presenting its case. H Dahlberg and M Ohrstrém, ‘Proper
Notification: A Crucial Element of Arbitral Proceedings’ (2010) 27(5) J Intl Arb 539.
37 Singapore Rules of Court, O 62 r 3; Companies Act (Cap 50, 2006 Rev Ed) s 387.
38S Chen and E Chua, Civil Procedure in Singapore (2nd edn, Wolters Kluwer 2016) para 253. The authors
discuss a string of cases detailing what would not be regarded as good personal service. These include: Thomson
v Pheney [1832] 1 DPC 441, 443 (server is permitted to throw the document down in defendant's presence
instead of handing it to him); Frith v Lord Donegal [1834] 2 Dow PR 527 (it is not sufficient to serve on the wife
of the defendant); Heath v White }1844] 2 D & L 40 (server is not permitted to throw the document down in the
wife's presence (in lieu of the defendant's presence); Christmas v Eicke [1848] 6 D & L 156 (itis not sufficient to
put the document through the door crevice and inform the defendant of the nature of the document); Banque
Russe v Clarke, [1894] WN 203 (it is not sufficient to enclose the document in an envelope without explaining
the contents of the envelope).
See alsoJPinsler, Principles ofCivil Procedure 129 (Acad Publ 2013); Singapore Civil Procedure 2015 Volume
1, at [1102] (GP Selvam ed, Sweet & Maxwell Asia, 2014). *
39 ‘The equivalent rule in the 2010 and 2013 SIAC Rules requires the sender of a communication to make
‘reasonable inquiry’ into whether the other options for service prescribed by the rules can be used, whereas
the re;SIAC Rules require ‘reasonable efforts’ (leaving open the question whether this is a more onerous
standard).
“© TH Webster, Handbook ofUNCITRAL Arbitration (Sweet & Maxwell 2010) paras 2.26~2.30.

86
 B. Rule 2—Notice and Calculation of Periods of Time

In addition to such ‘reasonable efforts’, a party seeking to rely on Rule 2.1(v) to effect service
5.36
should, for the reasons explained in paragraph [5.35], consider whether such a method
of
service is consistent with the rules for effecting service at the place of incorporation of the
intended recipient.

Finally, unlike a tribunal governed by, say, the 2014 LCIA Arbitration Rules (LCIA Rules 5.37
(2014)),*" a SIAC tribunal does not have an express power to stipulate any alternative means
of effecting service beyond those in the SIAC Rules. Further, while the parties can agree an
address for service under 2016 SIAC Rule 2.1 (iii), the SIAC Rules do not expressly provide
that the parties can agree to a method of service different to those prescribed by the SIAC Rules.
Nonetheless, any such agreement is likely to be considered an acceptable and binding mani-
festation of party autonomy, which is respected under the SIAC Rules and Singapore law.

2. Rule 2.2

Any notice, communication or proposal shall be deemed to have been received on the day it is
delivered in accordance with Rule 2.1

Date ofreceipt
Rule 2.2 provides that a notice, communication, or proposal shall be deemed to have been
received on the day it is ‘delivered’ pursuant to one of the five options for effecting service
under Rule 2.1.

3. Rule 2.3

For the purpose of calculating any period of time under these Rules, such period shall begin
to run on the day following the day when a notice, communication or proposal is deemed to
have been received. Unless the Registrar or the Tribunal determines otherwise, any period of
time under these Rules is to be calculated in accordance with the Singapore Standard Time
(GMT +8).

4. Rule 2.4

Any non-business days at the place of receipt shall be included in calculating any period of
time under these Rules. If the last day of any period of time under these Rules is not a business
day at the place of receipt in accordance with Rule 2.1, the period is extended until the first
business day which follows.
Calculation ofperiods oftime
Time periods under the SIAC Rules will begin to run on the day following the day when a ee
notice, communication, or proposal is deemed to have been received pursuant to Rules 2.1
and 2.2 of the 2016 SIAC Rules.

Time begins to run from the day after receipt even if that day is a holiday or a non-business 5.40
day in the country where the notification or communication is received.4* Rule 2.3 was

41 LCIA Rules (2014), Art 4.1: service can be effected ‘in any other manner ordered by the Arbitral Tribunal’.
42 In contrast, the ICC Rules (2017), Art 3(4) provides that time periods under the ICC Rules will begin to
run on the day following the date a notification or communication is deemed to have been made. But ‘when
the day next following such date isanofficial holiday, or a non-business day inthe country where the notifica-
tion or communication is deemed to have been made, the period of time shall commence on the first following
business day’.

87
 Starting the Arbitration

modified in 2016 to make clear that any period of time under the SIAC Rules is to be cal-
culated in accordance with Singapore Standard Time (GMT + 8), unless otherwise deter-
mined by the Registrar or the tribunal. Thus, a notice of arbitration filed with SIAC at Spm
Greenwich Mean Time will be considered to have been received by the SIAC Registrar and
the respondent at lam the following day unless otherwise determined by the Registrar or the
tribunal. This could, in turn, have a bearing on a party’s compliance with contractual and
statutory time-limitation periods.
5.41 If the final day of a stipulated period of time is a ‘non-business day’ at the place of receipt, the
period is extended to the first business day which follows.
5.42 While non-business days falling within a period of time are included in the calculation of
time, the SIAC Registrar and tribunals have been known to grant additional time (pursuant
to Rules 27(b) and 41.2) should major consecutive holidays occur close to the point when a
stipulated period of time is due to expire.

5. Rule 2.5

The parties shall file with the Registrar a copy of any notice, communication or proposal con-
cerning the arbitral proceedings.
Copies to be filed with the Registrar
5.43 ‘The parties to a SIAC arbitration are required to file with the Registrar a copy of any notice,
communication, or proposal concerning the arbitral proceedings“? so as to allow the SIAC
Secretariat to perform its supervisory function, including its scrutiny of arbitral awards pur-
suant to Rule 32.3 of the SIAC Rules. Parties should also copy such communications to the
tribunal members once the tribunal is constituted.

6. Rule 2.6

Except as provided in these Rules, the Registrar may at any time extend or abbreviate any time
limits prescribed under these Rules.
The Registrar's power to amend time limits
5.44 The Registrar may modify any procedural time limits arising during a SIAC arbitration
unless otherwise provided in the SIAC Rules. As a general rule, however, only the tribunal
can modify time limits which are within its authority to set (eg the date by which submis-
sions are to be filed).

C. Rule 3—Notice of Arbitration

5.45 A party (or parties) begins an arbitration under the SIAC Rules by filing a Notice of
Arbitration with the Registrar and the respondent (or respondents). As discussed in this part
of Chapter 5, the Notice of Arbitration must, among other things, include brief particulars
of the dispute but in sufficient detail so as to inform the respondent about the nature of the
case being brought against it. The information in the Notice of Arbitration willalso assist the

rrr rrr rrr terre.

“3 This does not apply to so-called party to party communications not intended to
be viewed by anyone
other than the parties.

88
 C. Rule 3—Notice of Arbitration

SIAC Registrar and Secretariat to set the amount of the advance on costs pursuant to Rule
34.2 and, to the extent necessary, identify potential candidates for the role of sole arbitrator
or presiding arbitrator.

1. Rule 3.1

A party wishing to commence an arbitration under these Rules (the ‘Claimant’) shall file with
the Registrar a Notice of Arbitration which shall include:
a. ademand that the dispute be referred to arbitration;
b. the names, addresses, telephone numbers, facsimile numbers, and electronic mail
addresses, if known, of the parties to the arbitration and their representatives, if any;
Q a reference to the arbitration agreement invoked and a copy of the arbitration agreement;
d. a reference to the contract or other instrument (eg, investment treaty)“4 out of or in
relation to which the dispute arises and, where possible, a copy of the contract or other
instrument;
e. a brief statement describing the nature and circumstances of the dispute, specifying the
relief claimed and, where possible, an initial quantification of the claim amount;
f. astatement of any matters which the parties have previously agreed as to the conduct of
the arbitration or with respect to which the Claimant wishes to make a proposal;
g. a proposal for the number of arbitrators if not specified in the arbitration agreement;
h. unless otherwise agreed by the parties, the nomination of an arbitrator if the arbitration
agreement provides for three arbitrators, or a proposal for a sole arbitrator if the arbitra-
tion agreement provides for a sole arbitrator;
i. any commentas to the applicable rules of law;
j. any comment as to the language of the arbitration; and
k. payment of the requisite filing fee under these Rules.
A Notice of Arbitration is required to cover the matters detailed in Rule 3.1 in order for the 5.46
arbitration to be deemed to have commenced pursuant to Rule 3.3. A Notice of Arbitration
must be accompanied by a copy of the arbitration agreement (which could be an arbitration
clause within a contract) and, where possible, the relevant contract or other instrument out
of or in relation to which the dispute arises. In practice, a Notice of Arbitration is also usu-
ally accompanied by the key factual documents that evidence the claimant’s summary of its
version of events that have given rise to the dispute as well as, potentially, key legal authori-
ties. As discussed further in the context of Rule 3.1(e), the Notice of Arbitration is a form
of advocacy. Its content thus should be guided by both the terms of the SIAC Rules and the
need to begin the process of convincing the tribunal (and the other side if there is a prospect
of settlement negotiations) of the merits of the claimant's position.
a. Rule 3.1(a): demand that the dispute be referred to arbitration
No particular form of words is needed in order to satisfy Rule 3.1(a). There is no need for a 5.47
claimant to expressly state that it ‘demands an arbitration. Indeed, the mere filing and ser-
vice of a Notice of Arbitration will constitute a sufficient demand that the dispute be referred
to arbitration.

ie nn
44 The text inbrackets has not been added by the authors, but is reproduced asit appears in the SIAC Rules
(201 Rule
6),3.1(d).

89
 Starting the Arbitration
nn

b. Rule 3.1(b): contact details ofthe parties and their representatives

5.48 The claimant is required to include in the Notice of Arbitration the names and pertinent
contact details of the parties to the arbitration and their legal representatives, if known.
It is important that care be taken to ensure that the parties are identified correctly so as to
avoid any dispute over whether the proceedings have been properly commenced.** There
is no requirement for party representatives to provide powers of attorney with a Notice of
Arbitration, although in practice they occasionally do so.
c. Rule 3.1(c): the arbitration agreement
5.49 A claimant should ordinarily*® set out in full in the Notice of Arbitration the terms of the
arbitration agreement which it contends provides the tribunal with jurisdiction, and to
provide a copy thereof. A claimant pursuing claims in reliance upon multiple arbitration
agreements should provide all relevant agreements as well as an indication of the particular
arbitration agreement under which each claim is made.*”
5.50 The requirement in Rule 3.1(c) for the claimant to provide a copy of the arbitration agree-
ment might suggest that a SIAC arbitration can be brought only pursuant to a written arbi-
tration agreement. It is enough, however, under Singapore law if an arbitration agreement
is merely evidenced in writing. Section 2A(4) of the IAA and section 4(4) of the AA provide
that: ‘An arbitration agreement is in writing if its content is recorded in any form, whether
or not the arbitration agreement or contract has been concluded orally, by conduct or by
other means.’
5.51 The IAA and AA further provide that an arbitration agreement is in writing if the informa-
tion is contained in an electronic communication which is accessible for subsequent refer-
ence.® Thus, an arbitration agreement can be formed by an exchange of emails which record
‘an agreement by the parties to submit to arbitration all or certain disputes which have arisen
or which may arise between them in respect of a defined legal relationship, whether contrac-
tual or nor’.*® This can be achieved through a basic agreement to SIAC arbitration which
would not be incomplete merely because the parties have not agreed all particulars such as
the seat of arbitration and the number of arbitrators.*°
5.52 Singapore law also expressly recognizes that an arbitration agreement can be incorporated
into a contract by reference.>' That is, a reference in a contract to another document which

45 In Honeywell International (n 3) paras 115-126, the claimant wrongly named Meydan LLC as the
respondent in its notice of arbitration. The contract in relation to which the arbitration was brought, however,
was with an entity called Meydan Group LLC. The English High Court noted various English authorities which
have accepted that a mistake in a request for arbitration will not render an award unenforceable ifthe document
in its totality could be construed as identifying the correct respondent. On that occasion, the English High
Court was satisfied that the proper party had been named as the respondent notwithstanding the mistake in the
identification of the respondent as Meydan LLC. Meydan LLC had become Meydan Group LLC after a change
of name and thus in essence it was the same entity. This meant that the request for arbitration would reasonably
have and did come to the attention of Meydan Group LLC.
“© An exception might be when the arbitration is brought pursuant to a detailed ad hoc arbitration agree-
ment, which, due to its length, is only attached as an annex or exhibit to the Notice of Arbitration.
“7 See the discussion on the pursuit of one or more arbitrations under multiple contracts in Ch 7.
“8 TAA, s 2A(5); AA, s 4(5).
49 TAA, s 2A(1); AA, s 4.
50 See Section
A ofthis Ch 5 for a discussion on so-called pathological clauses.
51 TAA, s 2A(7); AA, s 4(7). For a discussion on the jurisdiction of a SIAC tribunal, see Ch 10.

90
 C. Rule 3—WNotice of Arbitration

contains an arbitration clause is sufficient to constitute an agreement to arbitrate disputes

arising out of the contract.

Finally, as a matter of Singapore law, an arbitration agreement can arise if a party asserts that 5.53
such an agreement exists in a pleading, statement ofcase, or any other document in circum-
stances which call for a reply and the assertion is not denied by the other party.*
d. Rule 3.1(d): the contract or other instrument
The claimant is required to specify in the Notice of Arbitration the contract or, following 5.54
amendments made to the SIAC Rules in 2013, any other instrument to which the dispute
relates (such as an investment treaty), and, where possible, to provide a copy thereof. The
reference to an investment treaty in Rule 3.1(d) was retained in the 2016 SIAC Rules not-
withstanding the creation of a set of rules specifically for investment cases. This is because
investors and states may still agree to have their disputes determined in accordance with
the standard SIAC Rules. An agreement by the parties to refer their disputes ‘to SIAC for
arbitration or ‘to arbitration in accordance with the SIAC Rules’ will be deemed to be an
agreement that the dispute should be conducted under the standard SIAC Rules.>? For the
SIAC Investment Arbitration Rules to apply, the parties must have expressly agreed to refer a
dispute to arbitration in accordance with the ‘SIAC Investment Arbitration Rules’.
Rule 3.1(d) and the new SIAC investment rules reflect the increasing importance of invest- 5.55
ment treaty arbitration. Many investment treaties, including some entered into by Singapore,
expressly recognize that the investor and the State hosting the investment may choose to
resolve disputes under the rules of a commercial arbitral institution such as SIAC.5°
e. Rule 3. 1(¢): brief overview ofthe claim
The claimant is required to provide a brief statement describing the nature and circumstances 5.56
of the dispute and the relief claimed. The key word in Rule 3.1(e) is ‘brief’. The claimant will
have an opportunity later in the proceedings to present its case in full unless it elects pursuant
to Rule 3.2 to have the Notice of Arbitration treated as its Statement of Claim. As a general
rule, the Notice of Arbitration should contain sufficient detail to enable the respondent to
understand the claims being made and to formulate its defences.
The style used in the drafting of a Notice of Arbitration is often different to that of an 5.57
originating process such as a summons or court application used in domestic litigation. The
Notice ofArbitration will be the first pleading that an arbitrator in a new case will read. Thus,
the art of persuasion starts with its drafting. Care should be taken to ensure that it leaves a
favourable impression of the strength of the claimant's claim in the mind of the arbitrator(s).
The claimant should also provide an initial quantification of the amount claimed, ifpossible. 5.58
The estimate, along with the value of any counterclaims raised by the respondent, is used
by the Registrar to determine on a preliminary basis the fees payable to the tribunal mem-
bers and the SIAC Secretariat using the SIAC Schedule of Fees. This will, in turn, allow the

52 IAA, s 2A(6); AA, s 4(6).

Rule 1.1.
53 SIAC Rules (2016),
54 SIAC Investment Arbitration Rules (2017), Rule 1.1.
55 eg ASEAN Comprehensive an oti EP a a
and Ch 19.
Art 14(4)(e). Foradiscussion ofinvestor-State arbitration inSingapore, see Ch 1, paras {1.40-1.46]
91
 Starting the Arbitration
ee
Registrar to fix the amount of the advance on costs required to be paid by the parties at an
early stage of the arbitration.*°

f, Rule 3.1(f): statement on agreed or proposed procedures

5.59 A claimant should specify in the Notice of Arbitration any matters upon which the parties
have previously agreed regarding the conduct of the arbitration. Some of the procedural
issues upon which the parties may have agreed are identified in Rule 3.1(g)—(j). In add-
ition to those expressly prescribed matters, a claimant should also address in the Notice of
Arbitration any agreement on the seat of the arbitration,>” any necessary qualifications that
the SIAC President should consider when appointing an arbitrator, the applicability of legal
instruments like the International Bar Association’s (IBA) Rules on the Taking of Evidence
in International Arbitration 2010 (IBA Rules (2010)), and any constraints on the tribunal
such as any agreed period of time within which it must render an award.
5.60 In the absence of (or in addition to) any agreement of the parties, the claimant may make
submissions in its Notice of Arbitration on how it considers the arbitration should be
conducted.

g. Rule 3.1(g): proposal on the number ofarbitrators

5.61 The claimant should note any agreement of the parties on the number of arbitrators or, in the
absence of an agreement, make a proposal on whether the arbitration should be conducted
before one or three arbitrators. A sole arbitrator is usually sufficient for relatively low-value
disputes. A three-person tribunal, which will increase costs (see Chapter 15) and potentially
the time within which the dispute will be resolved, can be more appropriate for high value
or complex arbitrations or those which will determine significant issues of principle. The
default rule is that in the absence of an agreement on the number of arbitrators, or there
being special circumstances, a sole arbitrator will be appointed (Rule 9.1).
h. Rule 3.1(h): arbitrator nomination
5.62 Unless the parties have agreed otherwise, the claimant should ‘nominate’ an arbitrator for a
three-member tribunal or ‘propose’ an arbitrator for sole-arbitrator cases.** The terminology
is important. Where the parties have agreed to a three-person tribunal, the claimant has the
right to ‘nominate’ a person to serve on the tribunal. That nomination will be considered by,
and is subject to the approval of, the SIAC President who alone has the power to ‘appoint
formally an arbitrator to a tribunal pursuant to Rule 9.3. If the parties have agreed that a sole
arbitrator should resolve their disputes, the claimant can only ‘propose’ a candidate for the
role as the person is subject to the approval of the other party. If the respondent agrees to the
candidate, or conversely the claimant agrees to a person proposed by the respondent, the sole
arbitrator may be formally ‘appointed’ by the SIAC President (see Rule 10).
5.63 The claimant should provide the name, address, telephone number, and email address of any
arbitrator who is nominated or proposed.®

°° For a discussion on the determination of the advance on costs payable by the parties, including in circum-
stances where the claims or counterclaims are not quantified, see Ch 15.
57 See SIAC Rules (2016), Rule 21.
58 In practice, SIAC has allowed arbitrations to commence even when a claimant has not nominated an
arbitrator in its Notice of Arbitration provided it does so within a reasonable time thereafter, which Rule 11.2
would suggest is 14 days.
59 This requirement is stated expressly in some arbitration rules, such as the LCIA Rules (2014), Art 1.1(v).

92
 C. Rule 3—Notice of Arbitration

in cases where a sole arbitrator is to be appointed, the claimant may not wish to propose 5.64
someone for the role in its Notice of Arbitration for fear that the respondent will instinctively
reject anyone proposed by the claimant. In such circumstances, the Registrar may still accept
the Notice of Arbitration if the claimant identifies the proposed method for sole arbitrator
selection. For instance, the parties could adopt a list procedure whereby each party provides
a list of, say, five candidates which the opposing party is then asked to rank in order of prefer-
ence. The two lists are chen compared to see if an agreement can be reached by the parties on
the sole arbitrator. A variance of this approach is for the parties to agree on a suitable profile
for the sole arbitrator (or presiding arbitrator) in terms of such things as nationality, legal
and/or technical expertise, language abilities, physical location, profession, or other individ-
ual characteristics. The agreed criteria could then be submitted to SIAC with a request that it
provides a list of five or so candidates conforming to the criteria. The parties might then have
an agreed period of time in which to settle upon a candidate, failing which the choice could
be made by the SIAC President.
One of the distinguishing features of arbitration as compared to court litigation is that not 5.65
only does a party get to choose or agree on an arbitrator, but candidates can be interviewed
in advance of the choice being made. During any such meetings, parties should be mindful
of the guidelines regarding impartiality, independence, and disclosure set forth in guide-
limes such as the Chartered Institute of Arbitrators Guidelines for Interviews of Prospective
Arbitrators (2015). Suitable topics for discussion include whether the candidate has any
potential conflicts of interest and the necessary qualifications.
i. Rule 3. 1(i): rules oflaw
The claimant should identify in its Notice of Arbitration any applicable rules of law. These 5.66
include the rules of law applicable to the substance of the dispute, the arbitration agreement
(if different), and the arbitration procedure. An identification of the applicable rules of law
will, among other things, help the SIAC President to determine the appropriate profile of
candidates for the role of arbitrator should the President be required to choose someone on
the parties’ behalf pursuant to Rules 10.2 or 11.3.
j- Rule 3.1(j): language
The claimant should specify in its Notice of Arbitration the language of the arbitration 5.67
agreed by the parties or, failing that, make a proposal thereon.®
b. Rule 3.1(k): the filing
fee
The claimant must pay the case filing fee when filing the Notice of Arbitration with the
Registrar. This can bedone by cheque (in Singapore dollars) or electronic transfer (received
in Singapore dollars free ofbank charges). SIAC can also in exceptional cases receive pay-
ment of a filing fee through the use of a credit card although that may require additional
administrative steps. Details ofthe prescribed fee are contained in the SIAC Schedule of Fees
and are discussed in part B of Chapter 15.® Failure topay the filing fee will render the Notice
of Arbitration incomplete.

® C Seppila, ‘Recommended Strategy for Getting theRight International Arbitral Tribunal: A Practitioner's
View’, (2009) 6 TDM.
® See also SIAC Rules (2016), Rule 22.
®@ The SIAC Schedule of Fees can be found in Appendix 1.
 Starting the Arbitration

2. Rule 3.2

The Notice ofArbitration may also include the Statement of Claim referred to in Rule 20.2.

The Notice ofArbitration can be treated as a Statement of Claim

5.69 A claimant may wish to try to accelerate the arbitration by declaring that the Notice of
Arbitration should be treated as its Statement of Claim (which, if so, would need to sat-
isfy the requirements for a Statement of Claim prescribed in Rule 20.2) or by attaching a
Statement of Claim to its Notice of Arbitration as a separate document.
5.70 This strategy has certain risks, including those arising from the development of the Statement
of Claim before the makeup (and cultural and stylistic preferences) of the tribunal is known
and before the respondent has identified its defences and any counterclaims it may wish to
pursue. It is thus generally discouraged despite having the attraction of saving time and cost.

3. Rule 3.3

The date of receipt of the complete Notice of Arbitration by the Registrar shall be deemed to
be the date of commencement of the arbitration. For the avoidance of doubt, the Notice of
Arbitration is deemed to be complete when all the requirements of Rule 3.1 and Rule 6.1(b)
(if applicable) are fulfilled or when the Registrar determines that there has been substantial
compliance with such requirements. SIAC shall notify the parties on the commencement of
the arbitration.

Commencement ofthe arbitration

5.71 The date on which SIAC receives a complete Notice of Arbitration, as determined by the
Registrar, will be deemed the date the arbitration is commenced. It is also the date from which
the period of time for the respondent to submit a Response to the Notice of Arbitration
begins to run (see Rule 4.1).
Sie The Registrar may determine that a Notice of Arbitration is complete if there has been ‘sub-
stantial compliance’ with the requirements of Rule 3.1 and Rule 6.1(b), if applicable. In
practical terms, this means the Notice of Arbitration should at a minimum cover the require-
ments of Rules 3.1(b)—(e) and (k).
i In the absence of a complete Notice of Arbitration, the SIAC Secretariat will contact the
claimant to request the missing information.
5.74 Should the matter be allowed to proceed, SIAC will typically provide the following informa-
tion to the parties: the commencement date; the SIAC case number; the method by which
the parties are to communicate with each other and the tribunal (with SIAC generally having
a preference for electronic communications); the financial details for the case, including the
estimated SIAC costs of the arbitration,® the requested advance on costs and the due date
for the advance; the details of the SIAC team (counsel, associate counsel, and SIAC case
manager) assigned to the case; payment instructions; and the current SIAC Practice Note for
Administered Cases. SIAC will also inform the respondent what information that should be
contained in its Response to the Notice of Arbitration, when it should be filed, and the filing
fee payable should the respondent wish to file a counterclaim.

eee ee
63 For a discussion on the ‘SIAC costs of the arbitration’, see Ch 15.

94
 D. Rule 4—Response to the Notice of Arbitration

the Claimant shall, at the same time as it files the Notice of Arbitration with the Registrar,
send a copy of the Notice of Arbitration to the Respondent, and shall notify the Registrar that
it has done so, specifying the mode of service employed and the date of service.

Copy of the Notice ofArbitration to be sent to the respondent

Rule 3.4 relieves SLAC of the administrative burden of serving the Notice of Arbitration 5.75
on the respondent. The claimant is required to serve the respondent with the Notice of
Arbitration ‘at the same time’ (or shortly thereafter)® it files the Notice with the Registrar.

D. Rule 4—Response to the Notice of Arbitration

Rule 4 prescribes the manner in which the respondent should respond to the Notice of 5.76
Arbitration.

1. Rule 4.1

The Respondent shall file a Response with the Registrar within 14 days of receipt of the Notice
of Arbitration. The Response shall include:
a. aconfirmation or denial of all or part of the claims, including, where possible, any plea
that the Tribunal lacks jurisdiction;
b. a brief statement describing the nature and circumstances of any counterclaim, specify-
ing the relief claimed and, where possible, an initial quantification of the counterclaim
amount;
¢. amy comment in response to any statements contained in the Notice of Arbitration under
Rules 3.1 or any comment with respect to the matters covered in such Rule;
d. unless otherwise agreed by the parties, the nomination of an arbitrator if the arbitra-
tion agreement provides for three arbitrators or, if the arbitration agreement provides
for a sole arbitrator, comments on the Claimant’s proposal for a sole arbitrator or a
counter-proposal; and
e. payment of the requisite filing fee under these Rules for any counterclaim.

a. Response to the Notice ofArbitration required within 14 days

Rule 4.1 requires the respondent to respond to the claims and stipulate any counterclaims 5.77
within 14 days of receiving a valid® Notice of Arbitration. This is done through the prepar-
ation and filing of a document with SIAC referred to as the Response to the Notice of
Arbitration (referred to herein and in the SIAC Rules as the Response). The Registrar may
extend the 14-day deadline for the filing of the Response pursuant to Rule 2.6. Ifthere are
multiple respondents, each may submit its own Response or a single Response may be sub-
mitted on their behalf jointly.

arene ntact et et if
transmitted electronical ly, by any
sending the documents means is to have to
Ld "As notedinparas(5.71-5.74], theRegistrar mayreject a NoticeofArbitration underRule3.3onthebasis
that itis incomplete. In such cases, the 14-day period for the Response will begin torun from the date ofthe
formal commencement of the

95
 Starting the Arbitration

5.78 Any failure by a respondent to submit a Response will not prevent the arbitration from
proceeding.® A related question often asked by users of arbitration, particularly claimants,
is whether a summary or default judgment can be obtained when a respondent fails to file a
Response. While tribunals have traditionally had difficulty answering that question in the
affirmative due to the need to ensure that the tribunal’s decision is enforceable, a mechan-
ism for the early dismissal of claims and defences has been incorporated into the 2016 SIAC
Rules for the first time.® Specifically, Rule 29 allows a tribunal to dismiss a claim or defence
which is manifestly without legal merit or outside the jurisdiction of the tribunal. It is unclear
whether an application could be made under Rule 29 to have an award rendered in favour
of a claimant on the basis that the respondent had failed to file a Response, as opposed .to its
having filed an obviously deficient defence, which is to what Rule 29 is expressly directed.
5.79 A further question often raised, this time usually by respondents, is whether a respondent
can participate in an arbitration which it had previously ignored. The unequivocal answer to
that question is yes, with the terms of the respondent's participation to be set by the tribunal.
While this is not stated expressly in the SIAC Rules, other arbitral institutions recognize that
the failure to file a Response will not constitute a waiver of the respondent's right to defend
itself subsequently or pursue a counterclaim.®
b. Rule 4.1(a): response to the claims
5.80 The respondent is required in its Response to confirm or deny all or part of the claims raised
in the Notice of Arbitration. The respondent is not obliged to elaborate on its defences, but
may do so.
5.81 In terms of drafting style, the respondent can, but need not, go through each and every
allegation raised in the Notice of Arbitration and painstakingly confirm whether the allega-
tion is accepted, denied or left open (as is often done in domestic court litigation). Rather,
respondents often adopt the approach of addressing the allegations raised by a claimant in
broad terms while telling its version of the dispute. Ultimately, the Response is a form of
advocacy, which the respondent should use to begin the process of convincing the tribunal
of its defences and any counterclaims it may have.
5.82 Singapore law requires that the raising of any jurisdictional objections be done ‘not later
than’ the filing of the Statement of Defence. As a matter of practice, however, it is usually
best for a respondent to do so at the first opportunity, which the SIAC Rules now expressly
recognize. Specifically, Rule 4.1(a) of the 2016 SIAC Rules provides that ‘where possible, any
plea that the Tribunal lacks jurisdiction’ should be included in the respondent's Response.

thet nastiness Alida i els te Sieeeliee

°© Rule 20.9 allows the tribunal to proceed with the arbitration even if the respondent does not a submit
a Statement of Defence. While it is not stated expressly in the SIAC Rules, the same principle applies
if the
respondent does not file a Response.
” SIAC Rules (2016), Rule 29; see Ch 11,
°8 LCIA Rules (2014), Art 2.4 states this principle expressly: ‘Failure to deliver any or any part of a
within time or at all shall not (by itself) preclude the Respondent from denying any claim or
Response
from advancing
any defence or cross-claim in the arbitration.’
69 Art 16(2) of the 1985 UNCITRAL Model Law, incorporated into Singapore
law pursuant to section 3(1)
of the IAA, provides that: ‘A plea that the arbitral tribunal does not have jurisdiction
shall be raised not later than
the submission of the statement of defence. A party is not precluded from raising such
a plea by the fact he has
appointed, or participated in the appointment of, an arbitrator,’

96
 D. Rule 4—Response to the Notice of Arbitration

¢. Rule 4.1(b): counterclaims

The respondent should articulate any counterclaims it has against the claimant in its 5.83
Response. The detail (and style) required by Rule 4.1(b) is equivalent to that expected of
the claimant pursuant to Rule 3.1(e) (see paras [5.56—5.58]). It need only be brief as the
respondent will have a further opportunity to describe its counterclaims in full when filing
its Statement of Counterclaim pursuant to Rule 20.
As discussed in Chapter 10, a respondent may also raise set-off defences in its Response to 5.84
the Notice of Arbitration.
d. Rule 4. 1(c): response to claimant’ proposals on procedure
The respondent should respond to or accept any submissions the claimant has made in its 5.85
Notice of Arbitration regarding the conduct of the arbitration. In particular, it is good prac-
tice for a respondent to comment in the Response on the procedural matters referred to in
Rule 3.1 so that the SIAC President or the tribunal will have the benefit of the respondent's
input on such matters before arriving at any decision thereon.
The respondent is also at liberty to comment on any relevant procedural matters which were 5.86
not addressed by the claimant in the Notice of Arbitration.
e. Rule 4. 1(d): nominating an arbitrator
If the parties have agreed (in their arbitration agreement) to have three arbitrators determine 5.87
their dispute and the claimant has nominated an arbitrator in its Notice of Arbitration pur-
suant to Rule 3.1(h), the respondent should ‘nominate’” an arbitrator in its Response (see
para [5.62] above). If the respondent does not do so, it risks waiving its right to nominate an
arbitrator. Alternatively, if the parties have agreed to have a sole arbitrator determine their
dispute and the claimant has proposed a candidate, the respondent should accept the candi-
date or make its own proposal.
The respondent should include in the Response the name, address, telephone number, and 5.88
email address of any arbitrator nominated or proposed.
As discussed at para [5.65] above, the respondent can interview one or more candidates for 5.89
the role of party nominated arbitrator (for a three-person tribunal) before making its choice
in order to confirm, for instance, that the candidate does not have any conflicts of interest
and satisfies any qualifications that the parties have previously agreed an arbitrator should
possess.
As discussed at para [5.64], ifa sole-arbitrator (or presiding arbitrator) is to be chosen by the 5.90
parties, they may wish to consider using a list procedure and/or calling upon SIAC to help
them make their choice.

f Rule 4.1(e): the filing feefor any counterclaims

Rule 4.1(e) of the 2016 SIAC Rules requires the respondent to pay the Registrar a filing fee 5.91
should it raise any counterclaims. This can be done by cheque or electronic transfer. Details
of the prescribed fee are contained in the SIAC Schedule of Fees and are discussed in part B
of Chapter 15.

70 See para [5.62] for a discussion on the relevance of the terminology ‘nominate’, ‘propose’, and ‘appoint’
in the context of the selection of arbitrators.

97
 Starting the Arbitration

5.92 SIAC will consider the counterclaim to be incomplete should the respondent fail to pay the
requisite filing fee.

2. Rule 4.2

The Response may also include the Statement of Defence and a Statement of Counterclaim,
as referred to in Rules 20.3 and 20.4.
a. Statement ofDefence and Statement ofCounterclaim
5.93 The respondent may include a Statement of Defence and a Statement of Counterclaim with
its Response to the Notice of Arbitration.
5.94 While this can save time and cost in the proceedings, it entails certain risks (see para [5.69—
5.70] above). It is thus generally discouraged, although one instance in which it might be
appropriate is if the claimant has itself included the Statement of Claim with its Notice of
Arbitration.

3. Rule 4.3

The Respondent shall, at the same time as it files the Response with the Registrar, send a copy
of the Response to the Claimant, and shall notify the Registrar that it has done so, specifying
the mode of service employed and the date of service.
a. Servingacopy ofthe Response on the claimant
5.95 The respondent should send a copy of its Response to the claimant ‘at the same time’! as
it filed the Response with the Registrar. After doing so, the respondent must notify the
Registrar and specify the mode and date of service.

ae “

Ua
” As noted at para [5.75], , the respondent may not be able to sendac opy to the
claimant ;‘at the same time 5
precisely as it files the Response with the Registrar unless it does so electronically
. Further, the fact that the
respondent must inform the Registrar of the date of service on the claimant indica
tes that while the Response
should be sent to the claimant and SIAC ‘at the same time’, it may arrive on differ
ent dates.

98
 6
EXPEDITED PROCEEDINGS
(SIAC RULE 5)

A. Efficiency and Expedition under D. Rule 5.3—The SIAC

the SIAC Rules 6.02 Expedited Procedure Prevails over
B. Rule 5.1—Circumstances in an Arbitration Agreement which
which the Expedited Procedure Contains Contrary Terms 6.38
May Be Appropriate 6.06 1. Rule 5.3 6.38
1. Rule 5.1 6.06 E. Rule 5.4—Discontinuing
C. Rule 5.2—The SIAC the Application of the Expedited
Expedited Procedure 6.19 Procedures to an Arbitration 6.43
1. Rule 5.2 6.20 1. Rule 5.4 6.43

One criticism of international arbitration is that it sometimes fails to live up to its potential 6.01
for the expeditious resolution of disputes.’ Indeed, there is a tension at the core of modern
international arbitration. On the one hand, parties seek speedy, cost-efficient, and final dis-
pute resolution; while on the other, the absence of an appeal mechanism for arbitral awards
generates a perceived need for exhaustive analysis of every fact and conceivable argument and
for the retention of the ‘best’ (and therefore the busiest) lawyers and arbitrators, creating an
attendant risk of ever-longer and more expensive arbitration proceedings.” That tension is
most obvious in cases of exceptional urgency, and in those with relatively small amounts at
stake where procedures typically used in international arbitration may be neither desirable
nor efficient.

1 JE Beerbower, ‘International Arbitration: Can We Realise the Potential?’ (2011) 27(1) Arb Intl 75.
2 § Menon SC, ‘International Arbitration: The Coming of a New Age for Asia (and Elsewhere)’, Opening
Plenary Session, [CCA Congress 2012, Singapore, para 25:
Today, arbitration is a highly sophisticated, procedurally complex and exhaustive process dominated
by its own domain experts. The lack of an avenue of appeal and minimal curial intervention were
meant to simplify things. Instead, these factors have given rise to the realisation that there is little
room for error in arbitration ... For our clients, arbitration has become a one-strike proposition
leading to the escalation of costs, as parties inevitably chase the best arbitrators and the best lawyers
to give themselves the best chance of winning their case.
of Australia) para
and orsv Gordian Runoff Ltd{2011]} HCA 37 (High Court
See also Westport Insurance Corp
111, per Heydon J: “The attractions ofarbitration aresaidtolie inspeed, cheapness, expertise andsecrecy . . But
it must besaid that speed and cheapness are not manifest inthe process to which the parties agreed [in this case].
Acommercial trial judge would have ensured more speed and less expense.’

99
 Expedited Proceedings (SIAC Rule 5)
Neen eee ee eee ee eee ee eee ee ee eee ee meena

A. Efficiency and Expedition under the SIAC Rules

6.02 SIAC has responded to these oft-repeated concerns with rules designed to achieve expedition
and cost-efficiency in all cases. In particular:
(a) the SIAC Rules (and Singapore law) require the tribunal, the SIAC President, the SLAC
Court, and the Registrar to conduct proceedings to ensure the fair, expeditious, and eco-
nomical determination of a dispute;?
(b) the SIAC Code of Ethics for an Arbitrator (2015) requires that an arbitrator accept an
appointment only ifhe or she ‘is able to give to the arbitration the time and attention which
the parties are reasonably entitled to expect’ s4
(c) the SIAC Rules require that a ‘preliminary meeting’ be held in person or by other means
‘[a]s soon as practicable after the appointment of all arbitrators’ so that the parties and tri-
bunal can discuss the procedures most ‘appropriate and efficient for the case’;°
(d) the SIAC Rules empower the tribunal to ‘direct the order of proceedings, which includes
determining whether to admit evidence or to exclude cumulative or irrelevant testimony,
and directing ‘the parties to focus their presentations on issues the decision of which could
dispose of all or part of the case’;® and
(e) SIAC introduced anew mechanism in 2016 to enable the early disposal of claims or defences
which are manifestly without legal merit or outside the jurisdiction of the tribunal.’
6.03 In addition to these general provisions, Rule 5 of the SIAC Rules, which was introduced
in 2010 and is the focus of this chapter, provides for an expedited procedure intended to
facilitate the rendering of an award by a tribunal within six months® from the date the
tribunal is constituted.°

3 The words in Rules 19.1 and 41.2 are more than just aspirational goals for a SIAC arbitration. They have
been interpreted as a matter of Singapore law as giving rise to a duty on the part of the arbitrators to ensure
the fair, expeditious, and economical determination of the dispute: ADG and another v ADI and another
matter [2014] SGHC 73, para 112. SIAC Rules 19.1 and 41.2 also empower an arbitral tribunal to focus on
the ‘essential issues’, such that they need not deal with every argument raised by the parties: 7M@M Division
Maritima SA de CV v Pacific Richfield Marine Pte Ltd(2013] SGHC 186, para 73. See also Triulzi Cesare SRL
v Xinyi Group (Glass) Co Ltd [2014] SGHC 220, para 131. See Chs 2 and 9 for a further discussion on the
balance to be struck by tribunals between giving the parties a full opportunity to be heard and the tribunal’s
duty to conduct the proceedings economically and expeditiously.
4 SIAC Code of Ethics for an Arbitrator (2015) para 1.1.
> SIAC Rules (2016), Rule 19.3.
6 SIAC Rules (2016), Rules 19.2 and 19.4.
7 SIAC Rues (2016) Rule 29. See Ch 11.
® While some members of the 2010 SIAC Rules Drafting Committee proposed a four-month time limit
for the issuance of an award—what they deemed to be a mid-point among the expedited procedural timelines
adopted by other institutions—SIAC settled upon a six-month time limit to strike a balance between the
desire for speed and the practical reality of briefing and hearing a case over a compacted time period. This time
limit has been retained in the 2016 SIAC Rules, Arbitral institutions tend to provide for expedited procedures
with timelines ranging from three to six months: WIPO, Expedited Arbitration Rules (2014), Art 58 (three
months); Swiss Chambers’ Arbitration Institution (SCAT), Rules of International Arbitration (2012), Art
42.1(d) (six months); HKIAC, Administered Arbitration Rules (2013), (HKIAC Rules (2013)), Art 41.2(f)
(six months); JCAA Commercial Arbitration Rules (2015), Rule 81.1 (three months); Stockholm Chamber
of Commerce, Expedited Arbitration Rules (2010) (SCC Expedited Arbitration Rules (2010)), Art 36 (three
months); Korean Commercial Arbitration Board (KCAB), International Arbitration Rules (2016) (KCAB
International Arbitration Rules (2016)), Art 48.1 (six months); CIETAC Arbitration Rules (2015) (CIETAC
Rules (2015)), Art 62 (three months); ICC Arbitration Rules (2017), Appendix VI, Art 4 (six months).
* As for expedited or fast-track arbitration more generally, see N Blackaby, C Partasides et al (eds), Redfern
and Hunter on International Arbitration (6th edn, OUP 2015) paras 6.26-6.40; Lord Mustill, ‘Comments on

100
 B. Rule 5.1— When Expedited Procedure May Be Appropriate

Table 6.1 Requests for expedited procedures

Year Number of applications for Expedited Number of approved applications fos

Procedures Expedited Procedures

2010? 20 13
2011° 19 15
2012° 40 34
2013° 36 23
2014° 44 23
2015° 69 27
20169 70 28
Total 229 163

* SIAC, *2000 CEO’s Annual Report’ (2010) 3. SIAC received 20 requests for the expedited procedure in the six
months after the new mechanism was introduced on 1 July 2010, of which 12 cases were accepted under Rule 5.1(a)
and one case accepted under Rule 5.1(b).
® SIAC, ‘2011 CEO’s Annual Report’ (2011).
© SIAC, ‘2012 CEO’s Annual Report (2012).
* SIAC, ‘Annual Report 2013’ (2013) 11. Two applications for expedition were suspended as the parties had not paid
the requisite deposit on the advance on costs in accordance with Rule 30 of the 2010 and 2013 SIAC Rules.
* SIAC, ‘Annual Report 2014’ (2014) 14.
* SIAC, ‘Annual Report 2015’ (2015) 18.
® SIAC, ‘Annual Report 2016’ (2016) 12.

The SIAC expedited procedure has proven to be popular with users of arbitration as shown 6.04
in Table 6.1.

Thus, in six and a half years since the procedures were first made available, 229 applications 6.05
for expedition were made, of which 163 were accepted. This level of interest in fast-track
arbitration had encouraged many of SIAC’s competitors to adopt their own expedited proce-
dures. The HKIAC did so in 2013 and the ICC in March 2017. The key differences between
the expedited procedures adopted by these three institutions are identified in the subsequent
sections of this chapter.

B. Rule 5.1—Circumstances in which the Expedited Procedure

May Be Appropriate
1. Rule 5.1

Prior to the constitution of the Tribunal, a party may file an application with the Registrar for
the arbitral proceedings to be conducted in accordance with the Expedited Procedure under
this Rule, provided that any of the following criteria is satisfied:
a. theamount in dispute does not exceed the equivalent amount of $$6,000,000, represent-
ing the aggregate of the claim, counterclaim and any defence of set-off;
b. the parties so agree; or
c. incases of exceptional urgency.
The Party applying for the arbitral proceedings to be conducted in accordance with the
Expedited Proceedings under this Rule 5.1 shall, at the same time as it files an application for

Fast-Track Arbitration’ (1993) 10(4)JIntl Arb 121; R Akerman, ‘Rules for Expedited Arbitration Procedure’
(19 95)
6(3) ARIA 301.

101
 Expedited Proceedings (SIAC Rule 5)
NE Eee
the proceedings to be conducted under the Expedited Procedures with the Registrar, send a
copy ofthe notification to the other party and shall notify the Registrar that it has done so,
specifying the mode ofservice employed and the date ofservice.
a. General requirements
6.06 The SIAC expedited procedure is only available if it is requested by a party (‘a party may file
an application ...’: Rule 5.1).'° This ‘opt in’ requirement is consistent with the approach
taken by the HKIAC."' In contrast, the 2017 edition of the ICC Rules provides that the ICC
expedited procedures shall apply automatically if the amount in dispute does not exceed
US$2 million unless the parties have agreed to opt out of the expedited procedures.'* The ICC
expedited procedures can also apply to cases featuring higher amounts on an opt-in basis.
6.07 Any application by a party to a SIAC arbitration for the adoption of the expedited proce-
dures in the SIAC Rules must be made prior to the constitution" of the tribunal and will
typically form part of a Notice of Arbitration or Response to a Notice of Arbitration.
6.08 An application cannot be made ex parte. Indeed, Rule 5.1 was amended in 2016 to provide
expressly that the applicant for the expedited procedure shall send a copy of the application
to the other party. The applicant shall inform the Registrar the method by which and the date
the other party (or parties) were notified of the application.
6.09 Upon receipt of an application for expedition, SIAC will allow the other parties to the arbi-
tration an opportunity to respond—typically within fourteen days. SIAC’s practice is to
then allow the applicant seven days to respond to any objections. (Naturally, this consult-
ation process needs to be done efficiently otherwise it will undermine the object of Rule 5 to
have the proceedings conducted expeditiously.)
6.10 An application for expedition under Rule 5. 1(a) or (b) would typically require little explanation
beyond the basic facts which demonstrate that the amount in dispute is less than S$6 million
or that the parties have agreed to expedited proceedings. More argument is likely to be needed,
however, if the applicant cannot satisfy Rule 5.1(a) or (b), but claims that there is an ‘excep-
tional urgency’ under Rule 5.1(c) which necessitates the adoption of expedited procedures.
b. Rule 5.1(a): amount in dispute
6.11 The majority of applications for the expedited procedure are made pursuant to Rule 5.1(a)
of the 2016 SIAC Rules on the basis that the ‘aggregate’ amount in dispute—including ‘the
claim, counterclaim and any set-off defence’-—does not exceed S$$6 million. The ceiling
under Rule 5.1(a) of the 2010 and 2013 SIAC Rules, which continues to apply to cases
administered under those rules, is S$5 million."

'0 ICC Rules (2017), Art 30(2). Similarly, the rules of three other arbitral institutions in the Asia Pacific
region—the JCAA and CIETAC—provide for an ‘opt-out’ expedited arbitration mechanism. That is, in the
absence of a contrary agreement by the parties, the JCAA and CIETAC expedited procedures apply automat-
ically to cases in which the amount in dispute does not exceed the specified thresholds: JCAA Rules (2015),
Rule 75.2(1); CIETAC Rules (2015), Art 56.1. The KCAB Rules (2016) adopt a similar approach under
which the expedited procedure applies if the amount of the claim is under the specified threshold or the parties
agree: KCAB International Arbitration Rules (2016), Art 43.
"’ HKIAC Rules (2013), Art 41.1.
'2 ICC Rules (2017), Art 30(2). .
'3 The tribunal will be constituted once the sole arbitrator or all three arbitrators in a three-person tribunal
have been formally appointed by the SIAC President.
“ In contrast, the thresholds for the application of expedited procedures in the absence of an agreement of
the parties or cases of exceptional urgency is HK$25 million under the HKIAC Rules and US$2 million under
the ICC Rules (2017).

102
 B. Rule 5.1—When Expedited Procedure May Be Appropriate

In order to calculate the aggregate amount in dispute, the value of the claim, counterclaim, 6.12
and any set-off amount (if known when the application is made) are added together. Thus,
a case involving a claim for $$4 million and a counterclaim or set-off for $$3 million would
yield an aggregate amount in dispute of $$7 million, thereby falling outside the limit set by
Rule 5.1 (a).

An applicant would ordinarily have a right to the adoption of expedited procedures ina 6.13
case in which the total value of the claim, counterclaim and any set-off amount falls below
the relevant threshold under Rule 5.1(a). In other words, the SIAC President is unlikely to
exercise his or her discretion under Rule 5.2 to reject an application for expedition if Rule
5.1(a) is satisfied.'5

c. Rule 5.1(b): agreement ofthe parties

An application for the expedited procedure may be made with the agreement of all parties 6.14
pursuant to Rule 5.1(b). Such an agreement may be incorporated in the original contract'®
between the parties or reached after a dispute has arisen.
d. Rule 5.1(c): ‘exceptional urgency’
An application for an arbitration to be expedited may also be made ‘in cases of exceptional 6.15
urgency.'’The SIAC Rules do not define ‘exceptional urgency’; it is thus determined by the
SIAC President on a case-by-case basis. When it is found to exist, a case can be ordered to be
fast-tracked despite neither Rule 5.1(a) nor 5.1(b) being satisfied.'8

Very few applications for the expedited procedure have been accepted solely on the basis of 6.16
exceptional urgency under Rule 5.1(c), although Rule 5.1(c) is occasionally cited as a further
or alternative ground to Rule 5.1 (a). Itis also noted that cases involving ‘exceptional urgency’
may go before an Emergency Arbitrator pursuant to Rule 30.2.
In one case in 2014, however, the applicant successfully argued that expedition was warrantedas 6.17
the dispute was preventing it from performing third party contracts, thereby exposing it to severe
losses well in excess of the arbitrated claim. In another case, the claimant successfully contended
that the respondent's alleged failure to make payments had affected its ability to make payments
to third parties and, thus, exposed it to further risk of loss if the third-party payments were not
made by their due dates.

'S In contrast, as already noted, the ICC Rules (2017) expressly provide in Art 30(2) that the ICC expe-
dited rules automatically apply if the amount in dispute does not exceed US$2 million unless the parties agree
otherwise.
‘6 SIAC has published on its website an expedited procedure model clause, which provides, in part, that: “The
parties agree that any arbitration commenced pursuant to this clause shall be conducted in accordance with
the Expedited Procedure set out in Rule 5.2 of the SIAC Rules.’ SIAC website, ‘Expedited Procedure Model
Clause’, available at <http://www.siac.org.sg/model-clauses/expedited-procedure-model-clause> (accessed 26
2016).
“ discussion on ‘exceptional urgency’, and the meaning given to that term by another arbitral insti-
tution in the slightly different context of the expedited formation of an arbitral tribunal, see P Turner and R
Mohtashami, A Guide to the LCIA Arbitration Rules (OUP 2009) paras 4.101-4.103, noting one decision in
which the LCIA Court determined that there was an ‘exceptional urgency’ after State court proceedings had
been brought by the respondent which could have rendered the arbitration proceedings redundant. In contrast,
conduct by a respondent that, according to the LCIA Court, could be adequately compensated in monetary
terms did not rise to the level of‘exceptional urgency’.
18 While the HKIAC Rules similarly allow the expedited procedures to apply in cases of ‘exceptional
urgency’, this option does not exist under the 2017 ICC Rules.

103
 Expedited Proceedings (SIAC Rule 5)
a nee
6.18 Another applicant convinced the SIAC President that the expedited procedure was necessary as
the other party was likely to receive a significant amount of money under a settlement agreement
with a third party which could be used to honour an adverse award, but which would be at risk
of dissipation if the issuance of the award were delayed beyond the six mon ths stipulated for an
expedited case."

C. Rule 5.2—The SIAC Expedited Procedure

6.19 Rule 5.2 sets out the (limited) modifications made to SIAC’s procedures for an expedited arbitra-
tion. Most significantly, the expedited procedure encourages the use of a sole arbitrator, requires
the issuance of an award within six months of the tribunal being constituted, and allows the
tribunal to state its reasons for deciding in summary form.

1. Rule 5.2

Where a party has filed an application with the Registrar under Rule 5.1, and where the President
determines, after considering the views of the parties, and having regard to the circumstances
of the case, that the arbitral proceedings shall be conducted in accordance with the Expedited
Procedure, the following procedure shall apply:
a. the Registrar may abbreviate any time limits under these Rules;
b. the case shall be referred to a sole arbitrator, unless the President determines otherwise;
c. the Tribunal may, in consultation with the parties, decide if the dispute is to be decided on
the basis of documentary evidence only, or if a hearing is required for the examination of any
witness and expert witness as well as for any oral argument;
d. the final Award shall be made within six months from the date when the Tribunal is consti-
tuted unless, in exceptional circumstances, the Registrar extends the time for making such
final Award; and
e. the Tribunal may state the reasons upon which the final Award is based in summary form,
unless the parties have agreed that no reasons are to be given.

a. The role ofthe SIAC President

6.20 Users of the SIAC Rules do not have an inviolable right to insist upon an expedited proced-
ure. While any agreement of the parties to adopt the expedited procedures is likely to be
respected, Rule 5.2 of the 2016 SIAC Rules provides that the determination as to whether
the expedited procedure is appropriate for a particular dispute rests with the SIAC President.
(The SIAC Chairman performed the role under the 2010 SIAC Rules until 1 April 2013,
at which point the term ‘Chairman’ under those rules was re-defined to mean ‘President’.?°
Notably, the functions of the President under Rule 5 can be performed by the Vice President,
Registrar, or Deputy Registrar.?')
6.21 After considering the views of the parties, an expedited procedure application may be rejected
by the SIAC President on the basis of such things as non-compliance with the $$6 million limit
under Rule 5.1 (a) (including claims that have not yet been quantified but may thereafter exceed
the threshold), the complexity of the case, if the date of the contract precedes the coming into
force of the expedited procedure (ie 1 July 2010), and/or ifcircumstances would otherwise merit

'9 SIAC Rules (2016), Rule 5.2(d).

20 SIAC Rules (2013), Rule 1.3.
21 SIAC Rules (2016), Rule 1.3.

104
 C. Rule 5.2—The SIAC Expedited Procedure

the appointment of a three-member tribunal that may be provided for in the arbitration clause.
In one case under the 2010 SLAC Rules,?? the parties held a preliminary meeting and agreed
that the matter should be conducted in accordance with the expedited procedure. The parties
communicated their agreement to the SIAC Chairman, who confirmed that the proceedings
would be fast-tracked.

In another case, the respondent provided no comments to the claimant’s application for the 6.22
expedition ‘despite several chasers’.23The SIAC Chairman, after considering the matter and not-
ing the absence of any objections by the respondent to the claimant’s application, determined
that the proceedings would be conducted in accordance with the expedited procedure.
The practice of the SIAC President, and previously the SLAC Chairman, is not to give reasons 6.23
for a decision under Rule 5.2. The SIAC Rules provide that there is no recourse against the
President's decision.”
b. Rule 5.2(a): time limits
The Registrar may abbreviate any time limits prescribed by the SIAC Rules for cases subject 6.24
to the expedited procedure. These include the time limits set for the filing of pleadings as well
as the nomination, proposal, and challenge of arbitrators, and the time within which a final
award needs to be rendered following the closure of the proceedings. The reduction of such
time limits may be necessary in order for the tribunal to render an award within six months
as required by Rule 5.2(d).
c. Rule 5.2(b): number ofarbitrators
Expedited cases will be determined by a sole arbitrator unless the SIAC President determines 6.25
otherwise. It was pointed out in the first edition of this book that the literal meaning of the
terms of Rule 5.2(b) was that the SIAC President could appoint a sole arbitrator to hear an
expedited case even if the relevant arbitration clause provides for a three-person tribunal as
had been recognized by at least one arbitral tribunal.?5 This point has now been confirmed by
the Singapore High Court in AQZ v ARA* and the introduction of Rule 5.3 into the SIAC
Rules in 2016, considered in Section D of this chapter. With that said, the SIAC President is
likely to respect any express agreement of the parties that a three-person tribunal should be
constituted for an expedited arbitration conducted pursuant to Rule 5.
The SIAC President will consider the complexity of the case and the quantum involved 6.26
when determining whether to depart from the default position under the SIAC Rules that
an expedited case should be determined by a sole arbitrator in order to minimize the cost and
time of the arbitration.””

22 AA v (1) AB and (2) AC [2012] 1 SAA 253.

23 (1) First Norwegian National and (2) Second Norwegian National v (1) Foreign Company and (2) British
National (2012) 1 SAA 175, para 11.
24 SIAC Rules (2016), Rule 40.2: ‘Save in respect of Rule 16.1 and Rule 28.1, the parties waive any right of
appeal or review in respect of any decisions of the President, the Court and the Registrar to any State court or
other judicial authority.’
25 A sole arbitrator rejected a challenge to his jurisdiction brought on the basis that the parties’ agreement
required the appointment of three arbitrators. The sole arbitrator ruled that the parties’ agreement to adopt the
SIAC Rules encompassed an agreement to use the expedited procedure in accordance with Rule 5, which allows
asole arbitratortobe appointed: W Company v Dutch Company and Dutch Holding Company (2012) 1 SAA 97.
26 AQZ v ARA [2015] 2SLR 972.
27 SIAC Rules (2016), Rule 9.1; Rule 5.2(b).

105
 Expedited Proceedings (SIAC Rule 5)

d. Rule 5.2(c): hearing

Rule 5.2(c) of the 2016 SIAC Rules corrects an anomaly in the 2010 and 2013 SIAC Rules.
The usual rule (found at Rule 24.1) is that a SIAC tribunal is only required to hold a hearing
if either party requests one or the tribunal considers it appropriate. Notwithstanding the
need for expedition, Rule 5.1(c) of the 2010 and 2013 SIAC Rules, however, mandates that
a hearing be held unless both parties agree to a documents-only arbitration. In other words,
the parties have to agree expressly to opt out of having a hearing under the 2010 and 2013
SIAC Rules in order to avoid having one. This can cause tension with the tribunal's duty to
ensure that the arbitration is conducted expeditiously and economically.”®
6.28 Thus, in one case explained in the first edition of this book, where the parties failed to reach
an agreement as to how the expedited arbitration should be conducted, the tribunal consid-
ered itself under an obligation to hold a hearing.?®
6.29 That should not happen under the 2016 SIAC Rules. Rule 5.2(c) of the 2016 SIAC Rules
confirms that the tribunal has the discretion to decide whether to hold a hearing in expedited
cases after consulting the parties. Indeed, the provision has been transformed in the sense
that even if the parties agree to opt into having a hearing for an expedited case, the tribunal
retains the power (at least in theory) to conduct the arbitration on the documents alone if
it considers that to be the most appropriate way of proceeding after having consulted the
parties. The tribunal may conduct any hearing via video conference, telephone, or similar
means of communication.?°
6.30 In contrast to the rules of some other arbitral institutions, the SIAC Rules do not impose any
limits on the length of a merits hearing for an expedited arbitration.?' In practice, hearings
for expedited cases seldom last more than one or two days.
e. Rule 5.2(d): speed
6.31 An award under the expedited procedure is to be made within six months from the date on
which the tribunal is constituted. In reality, arbitrators in expedited cases have even less time
to draft the award as the award must be submitted to the Registrar in draft form for scrutiny
and any comments implemented pursuant to Rule 32.3 within the six-month time limit set
by Rule 5.2(d).
6.32 The Registrar can grant additional time for the rendering of an expedited award in ‘excep-
tional circumstances’.?? Such circumstances include any agreement of the parties to extend
the time limit. A tribunal can also submit a reasoned request for a limited extension in time.33
f Rule 5.2(e): reasons
6.33 The form requirements for an arbitral award under Singapore law are addressed in Chapter 14.
For now, it is noted that for ordinary arbitrations, an arbitral tribunal must at a minimum

28 SIAC Rules (2016), Rules 19.1 and 41.2.

29 See Ch 6, para [6.27] of the first edition of this book.
20 This point is made expressly in the new ICC Rules: ICC Rules (2017), Appendix VI, Art 3(5).
3" JCAA Rules (2008), Rule 64 provides that in expedited proceedings, the hearing must not exceed one day,
with one additional day permitted only ifthis is ‘unavoidable’.
32 SIAC Rules (2016), Rule 5.2(d).
33 A tribunal may become functus officio if it fails to render an award within the required time limit. For
a discussion of this issue, see JWaincymer, Procedure and Evidence in International Arbitration (Kluwer Law
International, 2012) 415.

106
 C. Rule §.2—The SIAC Expedited Procedure

provide brief written reasons for its decision unless the parties agree otherwise.* Rule 5.2(e)
of the SIAC Rules provides that a tribunal determining an expedited arbitration may provide
such written reasons in summary form or give no reasons at all if that is agreed by the parties.
Brevity is acceptable given the emphasis on speed and efficiency in expedited arbitrations.35 6.34
That notwithstanding, the SIAC Secretariat has reported that tribunals in expedited cases
often do not appear to take advantage of the opportunity to submit an award with summary
reasons.*®
In circumstances where the parties agree that no reasons are required in support of the tribu- 6.35
nal’s decision it would be very difficult for either party to challenge the resulting unreasoned
award. Indeed, an agreement by the parties that the tribunal should not provide reasons for
its decision, as Rules 32.4 and 5.2(e) allow, is treated as an exclusion of the parties’ right to
appeal questions of law to the Singapore High Court, which would otherwise be allowed
under the AA for Singapore domestic arbitrations (but not the [AA).3
g. Other procedural issues
All other procedural issues that arise during an expedited arbitration are to be determined 6.36
in accordance with the remaining provisions of the SIAC Rules. In particular, the tribunal
(and the parties) will need to bear in mind the injunction in Rules 19.1 and 41.2 for the
arbitration to be conducted fairly, expeditiously, economically, and in a manner that will
lead to a final determination of the dispute.** For instance, a tribunal might determine that
new claims cannot be raised during the arbitration without its approval in order to keep the
expedited proceedings on track.*? Similarly, the tribunal might decide not to allow or con-
strain requests for document production or limit the number, length, and scope of written
submissions and written evidence.”
In contrast to the ICC, SIAC has not introduced a specific fee scale for expedited arbitra- 6.37
tions. The costs of SIAC administering an expedited case and arbitrator fees will be deter-
mined with reference to the amount in dispute pursuant to Rule 34 and the SIAC Schedule
of Fees (see Chapter 15).

s3(1), 1985 UNCITRAL Model Law, Art 31(2); AA, s 49(2).

% IAA,
35 As one commentator wrote in the context of the SIAC expedited procedure:
... ifthere are complaints about the sufficiency ofthe reasoning, the fact that parties have opted for
arbitration under rules which provide for truncated reasons ought to be taken into account. The
licence for brevity however isnot a licence toignore issues. Moreover, the dictates of natural justice
must still be observed. The challenge for a tribunal istobe brief and yet complete in its award.
Cc Sun SC, Singapore Law on Arbitral Awards (Academy Publishing 2011) 41, para 3.24.
naan tly docptdhanl precedente causes 10 payeeta ienigh.
7 AA,s 49(2). .
= As explained inCh 9, these provisions have been held bythe Singapore courts toimpose a duty onatri-
bunal to conduct the proceedings fairly, expeditiously, and economically.
38 See ICC Rules (2017), Appendix VI, Art 3(2).
See ICC Rules (2017), Appendix VI, Art 3(4). The ICC has also dispensed with the Terms of Reference
procedure for expedited arbitration under the ICC Rules.
 Expedited Proceedings (SIAC Rule 5)

D. Rule 5.3—The SIAC Expedited Procedure Prevails over an

Arbitration Agreement which Contains Contrary Terms
— . Rule 5.3

By agreeing to arbitration under these Rules, the parties agree that, where arbitral proceed-
ings are conducted in accordance with the Expedited Procedure under this Rule 5, the rules
and procedures set forth in Rule 5.2 shall apply even in cases where the arbitration agreement
contains contrary terms.

6.38 It was opined in the first edition of this book that the SIAC rules on expedited proceed-
ings could prevail over any contrary prior agreement of the parties as to how an arbitration
should be conducted. As already noted in this chapter, this has now been confirmed by the
Singapore High Court in AQZ v ARA" and through the inclusion of Rule 5.3 in the 2016
SIAC Rules.
6.39 The parties in AQZ v ARA had agreed a contract in 2009 which provided for the determin-
ation of disputes by a panel of three arbitrators under the SIAC Rules. An arbitration was
commenced pursuant to the 2010 SIAC Rules, which for the first time incorporated the
expedited procedures in Rule 5. The SIAC President approved the claimant's application
for an expedited arbitration and appointed a sole arbitrator to determine the case, not-
withstanding the respondent's objections. Two years later the key issue under consideration
by the Singapore High Court was whether the SIAC President was right to appoint a sole
arbitrator given that the parties had expressly agreed to three arbitrators in their contract in
late 2009, some six months before the new rules on expedition were introduced by SIAC on
1 July 2010.
6.40 Justice Judith Prakash (as she then was) held that a ‘commercially sensible approach’ to
interpreting the parties arbitration agreement would be to recognize that it was subject to the
procedural rules developed by SIAC, including those introduced by SIAC after the forma-
tion of the parties’ contract. In doing so, PrakashJnoted that in the first edition of this book,
at para 7.10, it was suggested that the date of the parties’ contract (and in particular whether
it pre-dates the introduction of the expedited procedure on 1 July 2010) is something the
SIAC President could consider when determining whether to appoint a sole arbitrator in
expedited proceedings.4? Her Honour further noted:
Additionally, the learned authors of A Guide to the SIAC Rules point out that the ICC’s new
emergency arbitrator provisions expressly state that they do not apply in the context of arbi-
tration agreements that were entered into before the new ICC rules came into force: at para
7.10, n 14; see ICC Rules (2012), Art 29(6). However, the SIAC’s Expedited Procedure pro-
vision does not contain a similar exclusion. This fortifies my conclusion that the Expedited
Procedure provision can override the parties’ agreement for arbitration before three arbitra-
tors even when the contract was entered into before the Expedited Procedure provision came
into force.

he
tennesetait
se aetpenaatian e
nectar teattninen saath a
41 AQZ vARA (n 26).
“ AQZ vARA (n 26) paras 133-35.

108
 E. Rule §. 4— Discontinuing an Arbitration Commenced

In addition to not drawing the attention of the SIAC President expressly to the fact that the 6.41
parties arbitration agreement pre-dated the introduction of SIAC’s expedited procedures
(which might have helped), it would appear that the respondent in the arbitration did not
argue before the High Court that the SIAC President’s decision to depart from the terms
of the arbitration agreement constituted an impermissable retrospective amendment to a
substantive right as to how the tribunal should be constituted.*? It thus remains an open
question under Singapore law whether an arbitral institution such as SIAC can override
an express agreement by the parties on the number of arbitrators on the basis of an instiru-
tional rule introduced after the arbitration agreement had been negotiated and agreed by
the parties.
The introduction of Rule 5.3 in 2016 confirms SIAC’s continued willingness to depart from 6.42
the terms of an arbitration agreement if necessary to achieve an expedited arbitration. The
SIAC Rules, however, remain silent on whether such a policy should be followed in relation
to an arbitration agreement reached before the SIAC expedited procedure was introduced in
2010 or modified in 2016. In contrast, as noted by PrakashJin AQZ v AZR, the ICC and the
LCIA rules of arbitration expressly exclude the application of new innovations to antecedent
contracts unless agreed by the parties.

E. Rule 5.4—Discontinuing the Application of the Expedited

Procedures to an Arbitration

1. Rule 5.4

Upon application by a party, and after giving the parties the opportunity to be heard, the
Tribunal may, having regard to any further information as may subsequently become avail-
able, and in consultation with the Registrar, order that the arbitral proceedings shall no longer
be conducted in accordance with the Expedited Procedure. Where the Tribunal decides to
grant an application under this Rule 5.4, the arbitration shall continue to be conducted by
the same Tribunal that was constituted to conduct the arbitration in accordance with the
Expedited Procedure.
Rule 5.4 was introduced into the SIAC Rules in 2016. Notably, while the SIAC President 6.43
has the power to decide whether an arbitration should be expedited under Rule 5.2, it is
the tribunal which has the discretion to decide whether the proceedings should continue
on an expedited basis. This discretion, however, is unlikely to be exercised unless new cir-
cumstances come to light which were not considered by the SIAC President and only after
consultation with the Registrar.
The main consequences of a decision under Rule 5.4 to conduct an arbitration in accordance
with the ordinary rules is that the award could be rendered after six months of the date the
tribunal is constituted and the grounds for deciding the dispute may need to be provided in
greater detail than if the case had continued on an expedited basis.

43 Fora discussion on retrospective amendments to substantive rights in arbitrations, see Ch 3, para [3.22].
44 cfICC Rules (2017), Art 29(6) regarding emergency arbitrators and Art 30(3)(a) for expedited proce-
dures; and LCIA Rules (2014), Art9(14) regarding emergency arbitrators.

109
 é
MULTIPLE CONTRACTS, CONSOLIDATION,
JOINDER, AND INTERVENTION
(SIAC RULES 6 TO 8)

12. Rule7.12 7.54

A. Multiple Contracts and Multiple Parties 7.02
7.06 13. Rule 7.13 7.58
B. Rule 6—Multiple Contracts
1. Rule 6.1 7.08 D. Rule 8—Consolidation 7.59
2. Rules 6.2 and 6.3 7.16 1. Rule 8.1 7.62
7.18 2. Rule 8.2 7.70
C. Rule 7—Joinder and Additional Parties 7.71
1. Rule 7.1 7.20 3. Rule 8.3
4, Rule 8.4 7.72
2. Rule 7.2 7.28
5. Rule 8.5 7.77
3. Rule 7.3 7a
6. Rule 8.6 7.79
4. Rule7.4 734
7. Rule 8.7 7.81
5. Rule 7.5 139
8. Rule 8.8 7.85
6. Rule 7.6 7.40
7.47 9. Rule 8.9 7.86
7. Rule 7.7 7.88
7.48 10. Rule 8.10
8. Rule 7.8 7.89
751 11. Rule 8.11
9. Rule 7.9 7.90
7.52 12. Rule 8.12
10. Rule 7.10
11. Rule7.11 7.53

7.01 Rules 6 to 8 deal with complex questions that arise in arbitrations involving multiple con-
tracts and multiple parties. A brief introduction to the issues and the relevant provisions is
provided in part A of this chapter, followed by a discussion of situations involving multiple
contracts in part B (Rule 6); joinder of additional parties in part C (Rule 7); and consolida-
tion of arbitrations in part D (Rule 8).

A. Multiple Contracts and Multiple Parties

7.02 An increasing number of transactions, and consequently, disputes involve multiple parties
and multiple contracts.' While there are benefits in allowing all such related disputes to be
resolved in a single legal proceeding, the consensual nature of arbitration creates a unique
difficulty: disputes under multiple contracts or involving multiple parties can usually only

' There is a clear international trend of more multi-party disputes being submitted to arbitration: in 1998,
around 20 per cent of arbitrations submitted to the ICC involved more than two parties; by 2015, 34 per cent
of ICC’s case load consisted of multi-party cases (The ICC International Court of Arbitration Bulletin 1999(1)
6; The ICC Dispute Resolution Bulletin 2016(1) 10).

110
 B. Rule 6—Multiple Contracts

be resolved in a single arbitration if there is some form of consent recognised under either
contracts or statutes between the parties.

In theory, it is possible for such consent to be set out in the relevant contract(s). In practice, 7.03
there is often no such provision, resulting in the risk of multiple arbitral proceedings being com-
menced to deal with related disputes—potentially berween different parties—leading to inef-
ficiency, increased cost, and the risk of inconsistent decisions from different arbitral tribunals.
To address this issue, most current editions of the leading international arbitration rules 7.04
contain detailed provisions dealing with arbitrations involving multiple parties and multiple
contracts.? Although previous editions of the SIAC Rules? empowered arbitral tribunals to
join additional parties to an existing arbitration, they neither provided for the consolidation
of multiple arbitration proceedings, nor allowed a party to commence multiple arbitrations
and concurrently apply for consolidation of those arbitrations, to deal with disputes arising
under multiple related contracts.
This has been dealt with in the current edition of the SIAC Rules, which contain detailed 7.05
provisions dealing with each of these scenarios:
(a) Rule 6 addresses the commencement of arbitration covering disputes arising out of mul-
tiple contracts;
(b) Rule 7 significantly expands upon the joinder provision under earlier editions of the
SIAC Rules, and sets out detailed provisions for joining additional parties to a pending
arbitration proceeding; and
(c) Rule 8 deals with the consolidation of two or more arbitrations, both before and after
the constitution of the arbitral tribunal.

B. Rule 6—Multiple Contracts

Rule 6 deals with the commencement of arbitration involving multiple contracts. In such a 7.06
situation, there are a number of possibilities, including the following:
(a) separate Notices of Arbitration are filed in respect of each arbitration agreement invoked,
together with a request for a consolidation, pursuant to Rule 6.1 (a);
(b) a single Notice of Arbitration is filed in respect of all the contracts and arbitration agree-
ments invoked, pursuant to Rule 6.1(b);

(c) a single arbitration agreement is invoked to cover disputes under multiple contracts;
(d) the parties, either before or after a dispute has arisen, agree to resolve disputes under mul-
tiple contracts in a single arbitration;

2 eg ICC Rules ofArbitration 2017 (ICC Rules (2017)), Art 9; LCIA Arbitration Rules (2014) (LCIA Rules
, 8; HKIAC Rules (2013), Art 29.
(2014))Art
3 SIAC Rules (2007, 2010 and 2013), Rule 24.1(b).
4 This isonthe basis that the arbitration agreement invoked isbroad enough to cover allthe disputes under
the multiple contracts. Thislikely falls outside thescope of Rule 6.1; seepara [7.14] below.
® Inpractice, this mayoverlap with scenario (c), depending onthenature andform oftheagreement reached
betwee n
the parties.

111
 Multiple Contracts etc (SIAC Rules 6 to 8)
eee
a
(e) none of the forgoing apply, and concurrent arbitrations are commenced to resolve dis-
putes under multiple contracts.
7.07 Scenarios (a) and (b) are discussed in the commentary on Rule 6.1 which follows, while scen-
ario (c) is discussed in paragraph 7.14 below. Scenario (d) is largely self-explanatory and turns
on the terms of the parties’ agreement to have disputes under multiple contracts resolved in
a single arbitration. Scenario (e) reflects the default position that absent any applicable statu-
tory or contractual agreement (including agreement to adopt the SIAC Rules), parties may
have to commence separate arbitrations to deal with disputes under multiple contracts. This
scenario may arise because of a tactical decision by one or more parties, or because there are
legitimate reasons for keeping the arbitrations separate (such as where the parties to related
contracts are entirely different).

1. Rule 6.1

Where there are disputes arising out of or in connection with more than one contract, the
Claimant may:
a. file a Notice of Arbitration in respect of each arbitration agreement invoked and concur-
rently submit an application to consolidate the arbitrations pursuant to Rule 8.1; or
b. file a single Notice of Arbitration in respect of all the arbitration agreements invoked
which shall include a statement identifying each contract and arbitration agreement
invoked and a description of how the applicable criteria under Rule 8.1 are satisfied. The
Claimant shall be deemed to have commenced multiple arbitrations, one in respect of
each arbitration agreement invoked, and the Notice of Arbitration under this Rule 6.1(b)
shall be deemed to be an application to consolidate all such arbitrations pursuant to
Rule 8.1.

7.08 Rule 6.1 sets out two options for the commencement of arbitrations involving disputes
arising out of or in connection with more than one contract: the filing of separate Notices
of Arbitration concurrently with an application for a consolidation; or the filing of a
single Notice of Arbitration in respect of all the contracts and arbitration agreements
invoked.
7.09 Rule 6.1 is drafted in permissive terms (‘may’); thus, it is open to a claimant or claimants not
to invoke Rule 6.1, for whatever reason.® If the claimant(s) do not elect to invoke Rule 6.1
and two or more arbitrations are commenced, it is open to the other parties to the arbitra-
tions to seek to consolidate the multiple arbitrations which have been commenced, by mak-
ing an application under Rule 8.
7.10 Under both Rule 6.1 (a) and 6.1(b), the Notice(s) of Arbitration submitted need to identify
each contract and arbitration agreement relied on, together with a description of how the
application satisfies the requirements for consolidation of arbitration proceedings as set out
in Rule 8.1. Under both sub-rules, the SLAC Court will determine ifa consolidation should
be granted. If so, the final result under both limbs of Rule 6.1 will be the same: the multiple
arbitrations will be consolidated into one arbitration.
7.11 Under Rule 6.1, the respondents to the multiple arbitrations do not need to be identical,
although each respondent needs to be a party to at least one of the arbitration agreements

® See para [7.6] above forexamples of other scenarios where Rule 6.1 may not apply.

112
 B. Rule 6—Multiple Contracts

which have been invoked. The situation is more complex where several claimants seek to
invoke Rule 6.1, they are all parties to at least one of the arbitration agreements invoked, but
not all of them are parties to all the arbitration agreements invoked. In such a scenario, there
is room for debate over whether Rule 6.1 can be relied upon by all the claimants.
Rule 6.1(b) allows for a single Notice of Arbitration to be filed in respect of multiple arbi- 7.12
tration agreements. However, the claimant is still ‘deemed to have commenced multiple
arbitrations, one in respect of each arbitration agreement invoked’.’ In situations where a
consolidation is not granted, the result is that the multiple arbitration proceedings, which
were ‘deemed’ to have been commenced will continue concurrently. Rule 6.3 builds on this,
by providing that in such a situation, the claimant ‘shall file a Notice of Arbitration in respect
of each arbitration that has not been consolidated’.

Given that the end result of both Rule 6.1(a) and 6.1(b) is that a consolidation may be 7.13
ordered, the decision of whether to invoke one or the other rule is largely a practical one,
with the following underlying strategic consideration: the advantage of invoking Rule 6. |(a)
is that each of the Notices of Arbitration to be drafted is likely to be a shorter, more straight-
forward document. The trade-off is that multiple Notices will need to be prepared and filed,
and it will often be necessary to explain the relationship between the multiple contracts, in
at least one of the Notices filed. Conversely, the advantage of invoking Rule 6.1(b) is that
only one Notice of Arbitration has to be prepared—a more practical option, in many cases.
However, this Notice will likely be a lengthier, more complex document. In addition, if a
consolidation is not granted, then it will be necessary to file new Notices of Arbitration, pur-
suant to Rule 6.3.
Rule 6.1 does not expressly address one common scenario—where a party wishes to invoke 7.14
only one arbitration agreement which is sufficiently broad to cover all disputes between all
relevant parties arising under all relevant contracts.® In some cases, it may also be open to a
claimant to invoke either all the relevant arbitration agreements and to rely on Rule 6.1, or
to invoke only one arbitration agreement which has been drafted in sufficiently broad terms,
thereby bypassing the Rule 6.1 procedure.
Rule 6.1 addresses consolidation applications which are made concurrently with the filing 7.15
of the Notice(s) of Arbitration. For consolidation of arbitral proceedings which have already
commenced,
see Rule 8.

2. Rules 6.2 and 6.3

6.2 Where the Claimant has filed two or more Notices of Arbitration pursuant to Rule 6.1(a),
the Registrar shall accept payment of a single filing fee under these Rules for allthe arbitrations
sought to be consolidated. Where the Court rejects the application for consolidation, inwhole
or in part, the Claimant shall be required to make payment of the requisite filing fee under
these Rules in respect of each arbitration that has not been consolidated.
 Multiple Contracts etc (SIAC Rules 6 to 8)

6.3 Where the Claimant has filed a single Notice of Arbitration pursuant to Rule 6.1(b) and
the Court rejects the application for consolidation, in whole or in part, it shall file a Notice of
Arbitration in respect of each arbitration that has not been consolidated, and the Claimant
shall be required to make payment of the requisite filing fee under these Rules in respect of
each arbitration that has not been consolidated.

7.16 Under Rule 3.1(k), a claimant must pay a filing fee when filing a Notice of Arbitration.?
Rule 6.2 makes it clear that where multiple Notices of Arbitration have been submitted
under Rule 6.1 (a), only a single filing fee is payable. This is reasonable, given that ifacon-
solidation is granted, there will in essence only be one arbitration. This also ensures that
in the case of both Rule 6.1(a) and Rule 6.1(b), the same approach is taken with respect to
filing fees.
7.17 If the application for consolidation is subsequently rejected by the SIAC Court (in whole or
in part), the claimant shall be required to pay a separate filing fee for each arbitration which
has not been consolidated. This applies to Notices of Arbitration filed under Rule 6.1(a), and
also to cases where the claimant has sought to file a single Notice of Arbitration in respect of
more than one contract, under Rule 6.1(b).

C. Rule 7—Joinder and Additional Parties

7.18 Although the SIAC Rules (2013) authorized the tribunal to allow additional parties to be
joined in an arbitration, this power was strictly limited. First, an additional party could be
joined only upon the application of aparty to the existing arbitration. Second, the additional
party had to bea party to the arbitration agreement invoked and the written consent of the
additional party to be joined was required."
7.19 Rule 7 has significantly expanded upon the circumstances under which additional parties
may be joined in an SIAC arbitration. An application for joinder may be made either to the
SIAC Court, before the constitution of the tribunal (Rules 7.1 to 7.7), or to the tribunal,
after it has been formed (Rules 7.8 to 7.11). The application can be made either by the exist-
ing parties to the arbitration, or by the non-parties seeking to be joined.

1. Rule 7.1

Prior to the constitution of the Tribunal, a party or non-party to the arbitration may file an
application with the Registrar for one or more additional parties to be joined in an arbitration
pending under these Rules as a Claimant or a Respondent, provided that any of the following
criteria is satisfied:
a. the additional party to be joined is prima facie bound by the arbitration agreement; or
b. all parties, including the additional party to be joined, have consented to the joinder of
the additional party.

hatte.
* ‘The amount payable is set out in the SIAC Schedule of Fee available on the SIAC
<http://www.siac.org.sg/estimate-your-fees/siac-schedule-of-fees#CaseFile_Fees website, available at
> (accessed 17 May 2017) and
SIAC’s website states that the case filing fee is non-refundable.
0 For a discussion of the joinder provision (Art 24(b)) under the SIAC
Rules (2013), see M Mangan,
L Reed, and JChoong, A Guide to the SIAC Arbitration Rules (1st edn, OUP
2014) para 10.08,

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 C. Rule 7—Joinder and Additional Parties

4. Application by parties and non-parties

Rule 7.1 specifically allows both parties and non-parties to an existing arbitration to apply 7.20
for a joinder.'' This is a broader provision in contrast to some arbitration rules, which do
not refer to non-parties being able to make a joinder application.'?The approach under Rule
7.1 seems to be justified on the basis that by agreeing to adopt the SIAC Rules, the parties
have consented to a multi-party arbitration, and a non-party should not be prevented from
joining into an existing arbitration solely because it was not named as a party to the arbitra-
tion by the claimant(s), and none of the existing parties to the arbitration wish to join the
non-party in the arbitration.'3
b. Filing ofapplications
Prior to the constitution of the tribunal, joinder applications are filed with the Registrar, and 7.21
the SIAC Court is then empowered to decide on the applications (Rule 7.4). Once the tribu-
nal has been constituted, applications are to be made to the tribunal (Rule 7.8).

c. Joinder as a claimant or a respondent

Rule 7.1, together with Rule 7.2(c), make it clear that the additional party may only be 7.22
joined either as a claimant or a respondent;"4 it does not provide for an option under which
the additional party is joined as an intervening party with no claims in the arbitration or
against whom no claims can be made.'> Similarly, the additional party may not be joined
simply to give it access to the arbitration filings, with the party merely seeking to reserve its
right to make claims only in the future. The consequence of being joined as a claimant or a
respondent is that orders, including costs orders, may be made against the joined party. The
SIAC Rules do not expressly address the situation of an amicus curiae.'®
d. Grounds for an application for joinder
Rule 7.1 sets out two alternative criteria which need to be satisfied in order to make a joinder 7.23
application:
(a) the non-party to be joined is prima facie bound by the arbitration agreement; or

" In the draft version of the SIAC Rules published on 18 January 2016 for public consultation (Draft SIAC
Rules (2016)), Rule 7 was entitled ‘Joinder and Intervention’. There is no reference to ‘intervention’ or inter-
venor in the final version of the Rules. The draft SIAC Rules are available at http://www.siac.org.sg/images/
stories/articles/rules/20 16Rulesclean%20-%20website. pdf (accessed 17 May 2017). See Rule 7 of the draft
SIAC Rules.
'2 eg Art 7 of the ICC Rules (2017), which do not refer to non-parties making a joinder application. The
Secretariat of the ICC International Court of Arbitration has reasoned that third party intervention is a rare
situation, that it is bound by stringent requirements to maintain confidentiality of arbitration proceedings
and that it would not be in a position to acknowledge the existence of an arbitration in the event a third party
makes a joinder application, much less entertain a request for intervention. See The Secretariats Guide to ICC
Arbitration (ICC, 2012), 3-294 to 3-296, commenting on the identically-worded Art 7 of the ICC Rules
(2012).
13 For a related discussion on the approach taken by national legal systems in claims by third parties/third
party interveners, see N Voser, ‘Multi-party Disputes and Joinder of Third Parties’ in AJ van den Berg (ed),
50YeYears ofthe New York Convention: ICCA International Arbitration Conference, (Kluwer Law International
2009), 358.
¥ ie 1 states that ‘Any singular noun shall be understood torefer tothe plural in the appropriate circum-
stances’; thus, itisclear that the additional party will be part of the Claimant group, or the Respondent group.
'S See para [7.20] and fn 11 above.
16 On the other hand, the SIAC IA Rules (2017) specifically provides that a Non-disputing Contracting
Party may make written submissions tothe Tribunal (SIAC IA Rules (2017), Rule 29).

115
 Multiple Contracts etc (SIAC Rules 6 to 8)

(b) all parties, including the non-party, have consented to the joinder.
7.24 Limb (b) applies only if all the parties, including the non-party, consent to the joinder at the
time the application is made. The parties’ prior agreement to be bound by the SIAC Rules
does not amount to consent, for the purposes oflimb (b).
7.25 Consequently, Rule 7.1 (a) will in practice be the limb that is relied upon, if there is a contest
over the joinder of a non-party to the arbitration. The reference to ‘prima facie’ establishes a
relatively low threshold for Rule 7.1 (a) to be engaged: the SIAC Court only needs to consider
whether there exists an arbitration clause which is valid and covers the dispute at hand and
the non-party concerned; it does not need to make an actual determination of the existence
and scope of the arbitration agreement in question."
7.26 The question of party consent in the context of a joinder application has been the subject of
case law: in particular, is the parties’ adoption ofa set of arbitration rules, without more, suf-
ficient to bind all the parties to the joinder of additional parties to the arbitration, as decided
by the tribunal? In PT First Media,'*® the Court of Appeal recognized the importance of the
requirement of consent, and that ‘[i]f there is consent given in any form, either under the
arbitration agreement or through subscription to a set of institutional rules which unam-
biguously permits forced joinders, that would suffice to negative any subsequent allegation
that there was no agreement to arbitrate with the joined party.’
7.27 The SIAC Rules (2016) directly addresses this point, by making it clear that a non-party
to the arbitration may be joined if all the parties consent, or if the non-party is prima facie
bound by the arbitration agreement. Conversely, it is clear that non-parties to the arbitration
agreement may not be joined, absent consent. This is consistent with the approach taken by
a number of other arbitration rules."
2. Rule 7.2

An application for joinder under Rule 7.1 shall include:

a. the case reference number of the pending arbitration;
b. the names, addresses, telephone numbers, facsimile numbers, and electronic mail
addresses, if known, of all parties, including the additional party to be joined, and their
representatives, if any, and any arbitrators who have been nominated or appointed in the
pending arbitration;
whether the additional party is to be joined as a Claimant or a Respondent;
ao. the information specified in Rule 3.1(c) and Rule 3.1(d);
e. if the application is being made under Rule 7.1(b), identification of the relevant agree-
ment and, where possible, a copy of such agreement; and
f. a brief statement of the facts and legal basis supporting the application.
The application for joinder is deemed to be complete when all the requirements of this Rule
7.2 are fulfilled or when the Registrar determines that there has been substantial compliance

SSIEERNISRIT
as acme nrerer re

"” For further discussion on the application of the prima facie standard versus the full merits approach
in the
context of the Singapore Court's determination of applications for stay of proceedings under Art 8 of
the LAA,
see Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals [2015] SGCA 57, para
6-70.
'8 PT First Media TBK v Astro Nusantara International BV([2013] SCGA 57. See also GB
Born, International
Commercial Arbitration (2nd edn, Kluwer Law International 20 14) 2602-603.
On the facts, the Court of
Appeal in ms Media orsthat Rule 24(b) of the SIAC Rules (2007) did not confer on the Tribunal
the
power to join parties who were not party to the arbitration agreement in question: see 16 :
'9 eg ICC Rules (2017), Art 6.4(i); HKIAC Rules (2013), Art 27.1. ‘ Aeon

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 C. Rule 7—Joinder and Additional Parties

with such requirements. SIAC shall notify all parties, including the additional party to be
joined, when the application for joinder is complete.

a. Contents ofthe application for joinder

In making an application for joinder under Rule 7.1, the applicant is required to submit an 7.28
application which contains some of the information required in a Notice of Arbitration.
This includes contact details of the parties and their representatives (Rule 7.2(b)), and
references to the arbitration agreement invoked and the contract out of or in relation to
which the dispute has arisen (Rule 7.2(d)). These requirements are discussed in more detail
in Chapter 5.

If the application is made on the basis of consent of all the parties, then the agreement which 7.29
contains the consent has to be identified (Rule 7.2(e)).

The application for joinder should also include the case reference number of the arbitra- 7.30
tion concerned (Rule 7.2(a)), contact details of arbitrators who have been nominated or
appointed in the arbitration (Rule 7.2(b)), and a statement on whether the additional party
is to be joined as a claimant or a respondent (Rule 7.2(c)). As explained in paragraph 7.22
above, Rule 7 envisages that the additional party should be joined either as a claimant or a
respondent, and not as an intervening party.
Lastly, Rule 7.2 requires a brief statement of the facts and legal basis for the joinder appli- 7.31
cation (Rule 7.2(f)). This statement serves as the basis for the SLAC Court’s decision on
whether the application should be granted.
b. Substantial compliance with the requirements under Rule 7.2
Although Rule 7.2 lists the information required, the Registrar retains a discretion to deter- 7.32
mine whether or not an application has substantially complied with the requirements under
the rule. The reference to ‘substantial compliance’ is potentially important, as the application
for joinder may not contain all the information set out in Rule 7.2, because, for example, a
non-party is the applicant and does not have access to all the required information.

3. Rule 7.3

The party or non-party applying for joinder under Rule 7.1 shall, at the same time as it files
an application for joinder with the Registrar, send a copy of the application to all parties,
including the additional party to be joined, and shall notify the Registrar that it has done so,
specifying the mode of service employed and the date of service.
Similar to the requirement for service of the Notice of Arbitration under Rule 3.4, the appli- 7.33
cant for a joinder is required to file the application with the Registrar and to provide a copy
of the application to all relevant parties concerned. This ensures that all relevant parties are
aware of the application and have an opportunity to respond.

4. Rule 7.4

The Court shall, after considering the views of all parties, including the additional party to
be joined, and having regard to the circumstances of the case, decide whether to grant, in
whole or in part, any application for joinder under Rule 7.1. The Court's decision to grant
an application for joinder under this Rule 7.4 is without prejudice to the tribunal's power to
subsequently decide any question as to its jurisdiction arising from such decision. The Court's
decision toreject anapplication for joinder under this Rule 7.4, inwhole orinpart, iswithout

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 Multiple Contracts etc (SIAC Rules 6 to 8)

prejudice to any party's or non-party’s right to apply to the tribunal for joinder pursuant to
Rule 7.8.

a. Court’ decision on the joinder application

7.34 In considering the joinder application, the SLAC Court shall consider the views of all the par-
ties concerned, and make its decision having regard to the circumstances of the case. Rule 7.4
does not specify the precise circumstances which the SIAC Court should take into account
in making its decision.
7.35 An earlier draft of the SIAC Rules published on 18 January 2016 for public consultation
(Draft SIAC Rules (2016)) included two factors which could be taken into account in con-
sidering the joinder application: the fair, expeditious, and economical resolution of the dis-
pute, and whether the claim(s) arising in relation to the additional party arose out of the same
transaction or series of transactions.

7.36 The final 2016 SIAC Rules do not set out any factor, although the preceding two factors will
likely be relevant to at least some joinder applications.
b. Joinder decision may be made by the SIAC Court, or by the Tribunal
While Rule 7.1 allows joinder applications to be made prior to the constitution of the
Tribunal, Rule 7.4 makes it clear that the SIAC Court’s decision on the joinder application
is without prejudice to the Tribunal’s power to subsequently decide any question as to its
jurisdiction arising from such a decision.
1a The above highlights an important distinction between the SIAC Court's (or tribunal’s)
power to rule on a joinder application and the tribunal’s jurisdiction. Following the Court of
Appeal’s decision in PT First Media, the power granted to the SIAC Court (or tribunal) to
rule on a joinder application is procedural in nature; such a power does not serve to extend
the tribunal's jurisdiction, the scope of which is defined by the parties’ agreement. Therefore,
the mere granting of a joinder does not expand the tribunal’s jurisdiction.”° Instead, as rec-
ognized by Rules 7.4 and 7.10, the tribunal retains its power under Rule 28.2 to rule on its
own jurisdiction.
7.38 Leaving aside Rule 7.4, a joinder application may also be made directly to the tribunal
under Rule 7.8, once it has been constituted. This is the case even where the SIAC Court has
rejected a joinder application under Rule 7.4.

5. Rule 7.5

Where an application for joinder is granted under Rule 7.4, the date of receipt of the complete
application for joinder shall be deemed to be the date of commencement of the arbitration in
respect of the additional party.
7.39 An application for joinder should contain some of the same information as in a Notice of
Arbitration (Rule 7.2). Similarly, Rule 7.5 states that the date of receipt of the application
for joinder is deemed to be the date of commencement of arbitration in respect of the add-
itional party; the date of commencement is mot the date on which the SIAC Court makes its
decision on the application.

enn
a

20 For the Singapore Court of Appeal’s discussion on the nature of the power to grant a joinder application
under the SIAC Rules (2007), see PT First Media v Astro Nusantara (n 18) para 181.

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 C. Rule 7—Joinder and Additional Parties

6. Rule 7.6

Where an application for joinder is granted under Rule 7.4, the Court may revoke the appoint-
ment ofany arbitrators appointed prior to the decision on joinder. Unless otherwise agreed by
all parties, including the additional party joined, Rule 9 to Rule 12 shall apply as appropriate,
and the respective timelines thereunder shall run from the date of receipt of the Court’s deci-
sion under Rule 7.4.

Rule 7.6 seeks to deal with the situation where one or more arbitrators have been appointed 7.40
prior to the decision on joinder, with the result that the joined party has not had an oppor-
tunity to participate in the appointment process.

Such a situation may lead to potential unfairness, by depriving the joined party of its legit- 7.41
imate interest in being involved in the appointment process. For example, the joined party
may be joined into the arbitration as part of the respondent group—even though its interests
may not be entirely aligned with those of the other respondents?'—only after the arbitrator
appointment process has been completed. In such a situation, the joined respondent may
feel aggrieved, as it may not consider the arbitrator who has already been nominated by the
other respondents to bea suitable arbitrator. In an extreme situation, depriving a party of the
right to participate in the constitution of the tribunal may result in a valid challenge to the
eventual arbitral award.”
Rule 7.6 addresses this situation, by empowering the SIAC Court to revoke the appointment 7.42
of any previously appointed arbitrators. This will place all the parties on an equal footing
with respect to the selection of the tribunal, and remove the risk that the selection may affect
the integrity of the proceedings.?3
Rule 7.6 is drafted in permissive terms: thus, it is clear that the SIAC Court will not auto- 7.43
matically revoke all previous appointments,” but will consider the circumstances of each
case. This is consistent with Rule 7.12, which provides that where an application for joinder
is granted, any party who has not participated in the constitution of the tribunal shall be
‘deemed to have waived its right to nominate an arbitrator or otherwise participate in the
constitution of the tribunal’. Thus, the joined party does not have an automatic right to par-
ticipate in the constitution of the tribunal.
There are various situations where revocation of previous arbitrator appointments may not 7.44
be justified. An obvious example is where the joined party has no objection to the arbitrators
who have been appointed. Similarly, ifonly the claimant's arbitrator has been appointed, and
the joined party is part of the respondent group, then it may be unnecessary to revoke the
appointment of the claimant’s nominated arbitrator, if all the respondent parties (including
the joined party) are able to agree on a joint nomination of the second arbitrator.

21 This situation may arise as Rule 7.1 envisages that a non-party may only be joined into the arbitration as
a claimant or a respondent—there is no third option.
22 New York Convention, Art V(1)(d); see eg Siemens AG and BKMI Industrieanlagen GmbH v Dutco
Consortium Construction Co (Cass Civ 7 January 1992).
23 See GB Born (n 16), 2589-591, 2606-612.
24 cfArt 15.11, ACICA 2016 Rules, which provides that the ACICA shall revoke the appointment ofarbi-
trators already appointed unless allparties agree on all members ofthe tribunal within 14 days of being notified
of the joinder; Art 27.11 ofthe HKIAC Rules similarly uses permissive language.
119
 Multiple Contracts etc (SIAC Rules 6 to 8)

7.45 If the appointment ofany of the existing arbitrators is revoked, the appointment of the new
arbitrator will follow the procedure set out in Rules 9 to 12. The relevant time limits under
Rules 9 to 12 will run from the date of receipt of the SIAC Court's decision under Rule 7.4
on joinder (and not from the date of the SIAC Court's decision on revocation).
7.46 Rule 7.6 only applies to the revocation of arbitrator appointments made prior to the con-
stitution of the tribunal. Once the tribunal has been constituted, there is no similar rule
dealing with revoking the appointment of arbitrators, a situation which appears to be left to
Rule 7.12.

7. Rule 7.7

The Court’s decision to revoke the appointment of any arbitrator under Rule 7.6 is without
prejudice to the validity of any act done or order or Award made by the arbitrator before his
appointment was revoked.

7.47 Although unlikely, it is possible that prior to the constitution of the tribunal, an arbitrator
may have carried out certain acts, or made certain orders or awards in the arbitration. An
example of this is the issuance of an Award by an Emergency Arbitrator who is subsequently
appointed by consent of all the parties?> to sit as an arbitrator in the arbitration proceedings
proper. Rule 7.7 makes it clear that even if the arbitrator’s appointment is revoked under
Rule 7.6, this will not affect the validity of any prior acts, orders, or awards made by the
arbitrator in question.

8. Rule 7.8

After the constitution of the Tribunal, a party or non-party to the arbitration may apply to
the Tribunal for one or more additional parties to be joined in an arbitration pending under
these Rules as a Claimant or a Respondent, provided that any of the following criteria is
satisfied:
a. the additional party to be joined is prima facie bound by the arbitration agreement; or
b. all parties, including the additional party to be joined, have consented to the joinder of
the additional party.
Where appropriate, an application to the Tribunal under this Rule 7.8 may be filed with the
Registrar.
7.48 Rule 7.1, as explained above, applies to a joinder application that is made prior to the con-
stitution of the tribunal. In contrast, Rule 7.8 applies to applications made after the tribunal
has been constituted.
7.49 Rule 7.8 is largely identical to Rule 7.1, save that under Rule 7.8, the application is made
to the tribunal,?6 and not to the SIAC Court. This is significant, because if an application
was originally made to the SIAC Court and the SIAC Court had rejected it, the joinder
application may still be made to the tribunal after its constitution: see Rule 7.4, In con-
trast, if the tribunal has dealt with the application, and has decided not to grant a joinder,
Rule 7.8 does not provide for any further application to be made. This raises an interesting

OL Ree ae elem

25 Under Schedule 1, para 6, an Emergency Arbitrator may not act as an arbitrator in any future arbitration
relating to the dispute, unless otherwise agreed by the parties.
76 Rule 7.8 envisages that the application to the Tribunal ‘may be filed with the Registrar’, but it is clear that
the application itself will be decided by the Tribunal, and not by the SIAC: see Rule 7.10,

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 C. Rule 7—Joinder and Additional Parties

issue, which is whether a party seeking a joinder should first make an application under
Rule 7.1, and if that application is rejected, it may then try to make a further applica-
tion under Rule 7.8.7” Having said that, if an earlier joinder application has already been
rejected by the SIAC Court, the tribunal is likely to take that rejection into account, in
reaching its own decision.
Rule 7.8 represents a significant departure from the more restrictive position under previous 7.50
versions of the SIAC Rules, which only permitted parties to an existing arbitration to apply
for the joinder of additional parties, and only if the additional party was a party to the arbi-
tration agreement invoked and had provided written consent to the joinder.”8

9. Rule 7.9

Subject to any specific directions of the Tribunal, the provisions of Rule 7.2 shall apply, mutatis
mutandis, to an application for joinder under Rule 7.8.
Rule 7.2 sets out a non-exhaustive list of items to be included in an application for joinder. 7.51
The default position is that similar information should be included in an application made
under Rule 7.8. However, this default position is subject to any specific directions from the
tribunal: this may be the case, for example, where an application has previously been made
under Rule 7.2 and the tribunal believes that it is unnecessary for the applicant to provide
the same information again, or where the tribunal considers that it already has some of the
required information (eg the information set out under Rule 7.2(b)).

10. Rule 7.10

The Tribunal shall, after giving all parties, including the additional party to be joined, the
opportunity to be heard, and having regard to the circumstances of the case, decide whether to
grant, in whole or in part, any application for joinder under Rule 7.8. The Tribunal’s decision
to grant an application for joinder under this Rule 7.10 is without prejudice to its power to
subsequently decide any question as to its jurisdiction arising from such decision.
Rule 7.10 is largely identical to Rule 7.4, save in two respects. First, the relevant decision- 7.52
making body under Rule 7.10 is the tribunal, not the SIAC Court. Second, as explained in
paragraph 7.48 above, if the SIAC Court rejects the joinder application, the applicant still
has a right to apply to the tribunal for the joinder. No further application is mentioned in
\)

Rule 7.10.

11. Rule 7.11

Where an application for joinder is granted under Rule 7.10, the date of receipt by the Tribunal
or the Registrar, as the case may be, of the complete application for joinder shall be deemed to
be the date of commencement of the arbitration in respect of the additional party.
Rule 7.11 is substantively identical to Rule 7.5, discussed above. 7.53

27 Where the joinder application isbrought by the party seeking tobejoined, there isa further advantage of
oy route: the to bejoined ismore likely to have anopportunity toparticipate inthe
process henemce ace the application is made under Rule 7.1.
28 SIAC Rules (2013), Rule 24.1(b).

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 Multiple Contracts etc (SIAC Rules 6 to 8)

12. Rule 7.12

Where an application for joinder is granted under Rule 7.4 or Rule 7.10, any party who has
not nominated an arbitrator or otherwise participated in the constitution of the Tribunal shall
be deemed to have waived its right to nominate an arbitrator or otherwise participate in the
constitution ofthe Tribunal, without prejudice to the right of such party to challenge an arbi-
trator pursuant to Rule 14.

7.54 As discussed in relation to Rule 7.6 above (paragraphs 7.39 to 7.44 above), where an add-
itional party is joined into the arbitration, there is a possibility that one or more arbitrators
may already have been appointed. Accordingly, the additional party would not have had an
opportunity to participate in the appointment of those arbitrator(s), and this may poten-
tially form the basis for a challenge to the eventual arbitral award.
Zo5 To mitigate this risk, Rule 7.6 allows—but does not require—the SIAC Court to revoke the
appointment of arbitrators appointed prior to the decision on joinder, in cases where the tri-
bunal has not yet been constituted. Where the tribunal has already been constituted, there is
no equivalent provision, although it is likely that the tribunal will take the risk of a challenge
of the award into account, in making its decision on joinder.
7.56 Rule 7.12 provides an added layer of protection, by stipulating that where an application for
joinder is granted, any party (including the joined party) who has not had an opportunity to
participate in the constitution of the tribunal ‘shall be deemed to have waived its right’ to so
participate in the constitution of the tribunal. This waiver is without prejudice to the right
of such a party to challenge an arbitrator pursuant to Rule 14 (which deals with the quite
different situation of a challenge relating to the arbitrator's impartiality or independence or
lack of agreed qualifications).
7.57 Rule 7.12 is in effect a contractual waiver of a joined party’s right to challenge an award sub-
sequently, on the basis that the party has not had an opportunity to participate (in full or in
part) in the constitution of the tribunal. While such a deemed waiver may well be recognized
in some jurisdictions, an advance or deemed waiver may be void as a matter of public policy
in other jurisdictions.

13. Rule 7.13

Where an application for joinder is granted under Rule 7.4 or Rule 7.10, the requisite filing fee
under these Rules shall be payable for any additional claims or counterclaims.
7.58 The SIAC Rules require filing fees to be paid with respect to any claims or counter-
claims made in the Notice of Arbitration (Rule 3.1(k)) and the Response to the Notice of
Arbitration (Rule 4.1(e)), respectively. Rule 7.13 makes it clear that further filing fees will
be payable if additional claims or counterclaims are made following a successful joinder
application.

senses
29 See eg the well-known case of Siemens AG and BKMI Industrieanlagen GmbH v Dutco Consortium
Construction Co (n 22), where the French Court of Cassation ruled that the parties’ right to designate an arbi-
trator under the principle of equality is a matter of public policy and such a right can only be waived after th
dispute has arisen. Accordingly, the French court annulled the underlying nee ‘ °

122
 D. Rule 8—Consolidation

D. Rule 8—Consolidation

Consolidation is a process by which two or more pending arbitrations are combined intoa 7.59
single arbitration, and heard by the same tribunal. Consolidation of arbitrations offers vari-
ous advantages, such as increased efficiency in hearings and avoiding inconsistent awards,
but it is possible only where the relevant legal framework provides for it, or with the agree-
ment of the parties.
It is relatively rare for the underlying /ex arbitri to provide for statutory consolidation. As for 7.60
consolidation by agreement, while the parties may include a consolidation provision in their
arbitration agreement, or agree to a consolidation after a dispute has arisen, this is often not
the case. In addition, because of the complexity of the issues involved, bespoke consolida-
tion provisions which the parties include in their own contracts may not be well-drafted, and
these often provide for the consolidation question to be determined by an arbitral tribunal
rather than an arbitral institution, leading to further complications.
Accordingly, and in line with most modern arbitration rules,3° the current edition of the 7.61
SIAC Rules contains provisions setting out a mechanism for the consolidation of arbitra-
tions. By agreeing to the SIAC Rules, the parties are bound by these provisions. As in the case
of an application for joinder, an application for consolidation may be filed before the tribu-
nal has been constituted (Rules 8.1 to 8.6) or, in more limited terms, after the constitution
of the tribunal (Rules 8.7 to 8.10).

1. Rule 8.1

Prior to the constitution of any Tribunal in the arbitrations sought to be consolidated, a party
may file an application with the Registrar to consolidate two or more arbitrations pending
under these Rules into a single arbitration, provided that any of the following criteria is satis-
fied in respect of the arbitrations to be consolidated:
a. all parties have agreed to the consolidation;
b. all the claims in the arbitrations are made under the same arbitration agreement; or
c. the arbitration agreements are compatible, and: (i) the disputes arise out of the same legal
relationship(s); (ii) the disputes arise out of contracts consisting of a principal contract
and its ancillary contract(s); or (iii) the disputes arise out of the same transaction or series
of transactions.

Rule 8.1 deals with consolidation of arbitrations prior to the constitution of the tribunal, 7.62
whereas Rule 8.7 addresses the more limited consolidation option available after a tribunal
has been constituted. Where some arbitrators have been appointed, but no tribunal has been
fully constituted in any of the pending arbitrations, Rule 8.1 is still applicable, provided that
the other requirements set out in the sub-rule are met.
Rule 8.1 does not set out the test for when a consolidation will be ordered. Rather, it sets out 7.63
the threshold requirements that have to be met; even ifthese requirements are met, the SIAC
Court will still make its decision under Rule 8.4 ‘having regard to the circumstances of the
case’, and may refuse to grant the consolidation sought.

Art10; LCIA Rules (2014)

30 eg ICC Rules (2017), 1(iv),22.1(x), and 22.6; HKIAC Rules (2013),
Arts 22.,
Art 28.

123
 Multiple Contracts etc (SIAC Rules 6 to 8)
ni
7.64 For Rule 8.1 to apply, there must be two or more pending arbitrations. If only one arbitra-
tion has commenced, then the proper procedure would be for a party to apply to be joined
into the arbitration under Rule 7, or to commence a second arbitration and to then apply
for a consolidation of the arbitrations. If no arbitrations have been commenced, and there
are multiple contracts involved in the dispute, then a party should consider invoking Rule 6,
dealing with multiple contracts.
7.65 The three criteria under Rule 8.1(a) are disjunctive, and the applicant only needs to satisfy
one of them. Rule 8.1(a) is the clearest, which allows for a consolidation if all the parties
have agreed. Agreement to adopt the SIAC Rules is not by itself sufficient to amount to an
agreement under Rule 8.1(a). Instead, any such agreement will typically occur only after the
arbitrations have commenced. Where there is such an agreement, it is unnecessary for all the
parties to be identical in all the pending arbitrations, nor do they need to be parties to the
same arbitration agreement.
7.66 Rule 8.1(b) will come into play if not all the parties have agreed to the consolidation, but all
the claims in the arbitrations are made under the same arbitration agreement. Here, the key
test is whether all the pending arbitrations have been commenced under the same arbitration
agreement; the fact that the parties may not be identical is not a hindrance.
7.67 If the pending arbitrations have not all been commenced under the same arbitration agree-
ment, then it will be necessary to look to Rule 8.1(c): this sub-rule allows a consolidation
application to be filed, as long as the arbitration agreements which have been invoked are
‘compatible’, and provided that one of the three limbs of that sub-rule is satisfied. It is impli-
cit in Rule 8.1(c) that for it to apply, at least two arbitration agreements have been invoked
in the pending arbitrations.
7.68 What amounts to ‘compatible’ arbitration agreements? 3" It is clear that the agreements do
not have to be identical. Rule 8.1(c) is otherwise silent on what constitutes ‘compatible’
arbitration agreements. This will therefore have to be dealt with on a case by case basis: the
fact that one arbitration agreement contains more detailed provisions than the other does
not automatically mean incompatibility, if the two agreements can be reconciled, and they
are not inconsistent. Conversely, if the arbitration agreements refer to different arbitration
rules, different numbers of arbitrators or different languages, then these are likely to raise
compatibility concerns.
7.69 In addition to the compatibility requirement, Rule 8.1(c) also requires the disputes to have
some connection. Specifically, they should arise out of the same legal relationship(s); or
involve a principal and ancillary contract(s) (such as a master or umbrella contract, and
related contracts); or arise out of the same transaction or series of transactions (such as a ser-
ies of related or chain contracts entered into over a period of time, between the same group
of parties on each side).

*" ICC Rules (2017), Art 6.4, HKIAC Rules (2013), Art 28.1, and LCIA Rules (2014), Art 22.1(x) contain
a similar requirement for ‘compatible’ arbitration agreements in the context of applications for consolidation.
See The Secretariat Guide to ICC Arbitration (n 12), 3-243 to 3-247 for commentary on the ICC Rules; M
J Moser and C Bao, A Guide to the HKIAC Arbitration Rules (OUP, 2017), Ch 10 for commentary on the
HKIAC Rules; § Wade, P Clifford, andJ Clanchy, A Commentary on the LCIA Arbitration Rules 2014 (Sweet
and Maxwell 2015), 22-042 for commentary on the LCIA Rules.

124
 D. Rule 8—Consolidation

2. Rule 8.2

An application for consolidation under Rule 8.1 shall include:

a. the case reference numbers of the arbitrations sought to be consolidated;
b. the names, addresses, telephone numbers, facsimile numbers, and electronic mail
addresses, if known, ofall parties and their representatives, if any, and any arbitrators who
have been nominated or appointed in the arbitrations sought to be consolidated;
(@) the information specified in Rule 3.1(c) and Rule 3.1(d);
d. if the application is being made under Rule 8.1(a), identification of the relevant agreement
and, where possible, a copy of such agreement; and
e. a brief statement of the facts and legal basis supporting the application.
Rule 8.2 lists the information that should be included in the application for consolidation; 7.70
this list is broadly analogous to that in Rule 7.2, which deals with joinder applications, and
has been discussed above. Given that the consolidation application will be sent to all the
parties to all the pending arbitrations (Rule 8.3), the applicant will have to consider carefully
what information it can disclose in its application, bearing in mind its confidentiality obliga-
tions. This is a particular concern if the parties to the pending arbitrations are not identical,
and the consolidation application is subsequently not granted. In such a situation, under
Rule 8.4, the arbitrations which are not consolidated will continue as separate arbitrations,
and consideration will need to be given to ensuring that relevant confidential information
from one arbitration has not been disclosed in the other arbitration.

3. Rule 8.3

The party applying for consolidation under Rule 8.1 shall, at the same time as it files an appli-
cation for consolidation with the Registrar, send a copy of the application to all parties and
shall notify the Registrar that it has done so, specifying the mode of service employed and the
date of service.
Rule 8.3 is analogous to Rule 3.4 and Rule 7.3, which have been discussed above. The refer- 7.71
ence in Rule 8.3 to ‘all parties’ refers to all the parties to the arbitrations which are the sub-
ject of the consolidation application. This has implications on what information should be
included in the consolidation application, as explained above under Rule 8.2.

4. Rule 8.4

The Court shall, after considering the views of all parties, and having regard to the circum-
stances of the case, decide whether to grant, in whole or in part, any application for consolida-
tion under Rule 8.1. The Court's decision to grant an application for consolidation under this
Rule 8.4 is without prejudice to the tribunal’s power to subsequently decide any question as
to its jurisdiction arising from such decision. The Court's decision to reject an application for
consolidation under this Rule 8.4, in whole or in part, is without prejudice to any party’s right
to apply to the tribunal for consolidation pursuant to Rule 8.7. Any arbitrations that are not
consolidated shall continue as separate arbitrations under these Rules.
a. Relevant considerations
When considering an application for consolidation, the SIAC Court shall consider the views 7.72
of all the parties concerned and have regard to the circumstances of the case.
Rule 8.4 does not specify the circumstances which the SIAC Court will take into account 7.73
in considering applications for consolidation. The Draft SIAC Rules (2016) stated that cir-
cumstances which may be taken into account include the fair, expeditious, and economical
125
 Multiple Contracts etc (SIAC Rules 6 to 8)

resolution ofthe dispute.?? The reference to fairness underscores the importance of ensuring
procedural fairness, ifaconsolidation is ordered. Expeditiousness refers to the importance of
ensuring that the arbitration proceedings are not delayed due to the consolidation of, or the
lack of any consolidation in relation to, the pending arbitrations. Economical resolution of
the dispute points to the cost element. The deletion of these three specific criteria from the
final SIAC Rules indicates that the SLAC Court is empowered to take into consideration all
the circumstances of the case, in order to reach its decision.
b. Decision ofthe Court
7.74 The application to consolidate may be granted or rejected in whole or in part—for example,
it is open to the SIAC Court to decide to consolidate only two of several pending arbitra-
tions, and to keep the remaining non-consolidated arbitrations separate. If an application
is rejected in whole or in part, Rule 8.4 makes it clear that any arbitrations which are not
consolidated will continue as separate arbitrations.
7.75 As in the case of a ruling on a joinder application, while Rule 8.1 allows consolidation appli-
cations to be made prior to the constitution of the tribunal, Rule 8.4 makes it clear that the
SIAC Court's decision on the joinder application is without prejudice to the tribunal’s power
to subsequently decide any question as to its jurisdiction arising from such a decision.
c. Subsequent application to the Tribunal
7.76 If the SIAC Court rejects an application for consolidation (whether in whole or in part), a
party may still apply to the tribunal for consolidation, pursuant to Rule 8.7.

5. Rule 8.5

Where the Court decides to consolidate two or more arbitrations under Rule 8.4, the arbitra-
tions shall be consolidated into the arbitration that is deemed by the Registrar to have com-
menced first, unless otherwise agreed by all parties or the Court decides otherwise having
regard to the circumstances of the case.
7.77 If an application for consolidation is granted, unless otherwise agreed by the parties or
decided by the SIAC Court, the arbitrations shall be consolidated into the arbitration which
is deemed to have commenced first. This is consistent with the approach under a number of
other rules.33
7.78 The significance of this rule is that—unless the SIAC Court invokes its power under Rule
8.6—the members of the tribunal deciding the consolidated arbitration will include any
arbitrators who have already been appointed in the arbitration which commenced first in
time. In deciding such timing issue, Rule 3.3 provides that the date of receipt of the com-
plete Notice of Arbitration by the Registrar is deemed to be the date of commencement of
the arbitration.
6. Rule 8.6

Where an application for consolidation is granted under Rule 8.4, the Court may
revoke
the appointment of any arbitrators appointed prior to the decision on consolidation.
Unless
Se ee
2 Draft SIAC Rules (2006) (fn 11), Rule 8.1,
33 eg ICC Rules (2017), Art 10; HKIAC Rules (2013), Art 28.4.

126
 D. Rule 8—Consolidation

otherwise agreed by all parties, Rule 9 to Rule 12 shall apply as appropriate, and the respective
timelines thereunder shall run from the date of receipt of the Court’s decision under Rule 8.4.

The question of consolidation will arise only if there are two or more pending arbitrations. 7.79
Where this is the case, it is quite possible that not all the parties to the consolidated arbi-
tration would have participated in the appointment of all the arbitrators still sitting in the
consolidated arbitration. This in itself does not mean that the SLAC Court should revoke
the appointment of all or any previously appointed arbitrators. For example, although the
parties to all the consolidated arbitrations may not be identical, they may all represent closely
related sides, and depending on the circumstances, the SIAC Court may consider that each
side therefore has had an equal and fair opportunity to participate in the constitution of the
tribunal.

If the SIAC Court does revoke the appointment of any arbitrators, then Rules 9 to 12 setting 7.80
out the arbitrator appointment process that shall apply, unless the parties agree otherwise.
The relevant timelines run from the date of receipt of the SIAC Court's decision under Rule
8.4, and not from the date of revocation of the appointment.

7. Rule 8.7

After the constitution of any Tribunal in the arbitrations sought to be consolidated, a party
may apply to the Tribunal to consolidate two or more arbitrations pending under these Rules
into a single arbitration, provided that any of the following criteria is satisfied in respect of the
arbitrations to be consolidated:
a. all parties have agreed to the consolidation;
b. all the claims in the arbitrations are made under the same arbitration agreement, and the
same Tribunal has been constituted in each of the arbitrations or no Tribunal has been
constituted in the other arbitration(s); or
c. thearbitration agreements are compatible, the same Tribunal has been constituted in each
of the arbitrations or no Tribunal has been constituted in the other arbitration(s), and: (i)
the disputes arise out of the same legal relationship(s); (ii) the disputes arise out of con-
tracts consisting of a principal contract and its ancillary contract(s); or (iii) the disputes
arise out of the same transaction or series of transactions.
Rule 8.1 deals with a consolidation application that is made before the constitution of any 7.81
tribunal in the arbitrations sought to be consolidated. In contrast, Rule 8.7 deals with a con-
solidation application made after the constitution of at least one tribunal. Even where the
SIAC Court has rejected a consolidation application made under Rule 8.1, a party may still
apply to the tribunal under Rule 8.7: see Rule 8.4.
Under Rule 8.7, the consolidation application to the tribunal can be made in three scenarios: 7.82

a. where all parties have agreed to the consolidation;

b. all the claims are made under the same arbitration agreement; or
y

c. the arbitration agreements are compatible.

Rule 8.7(a) is the most straightforward situation, as all the parties have agreed to the 7.83
consolidation. In the case of Rule 8.7(b) and Rule 8.7(c), however, there is a significant
limitation: the consolidation application can be made only if the same tribunal has been
constituted in each of the arbitrations sought to be consolidated, or only one tribunal has
been constituted in all the pending arbitrations. If different tribunals have been constituted,
then neither Rule 8.7(b) nor Rule 8.7(c) can apply.

127
 Multiple Contracts etc (SIAC Rules 6 to 8)
eee
7.84 The other terms contained in the criteria set out in Rules 8.7(a), 8.7(b), and 8.7(c) are dis-
cussed above, in the context of Rule 8.1.

8. Rule 8.8

Subject to any specific directions of the Tribunal, the provisions of Rule 8.2 shall apply, mutatis
mutandis, to an application for consolidation under Rule 8.7.

7.85 Rule 8.2 lists the information that should be included in the application for consolidation,
as discussed above.

9. Rule 8.9

The Tribunal shall, after giving all parties the opportunity to be heard, and having regard to
the circumstances of the case, decide whether to grant, in whole or in part, any application for
consolidation under Rule 8.7. The Tribunal’s decision to grant an application for consolida-
tion under this Rule 8.9 is without prejudice to its power to subsequently decide any question
as to its jurisdiction arising from such decision. Any arbitrations that are not consolidated shall
continue as separate arbitrations under these Rules.
7.86 Rule 8.9 is largely analogous to Rule 8.4, which is discussed above. However, there are three
differences.
7.87 First, Rule 8.9 refers to the tribunal giving all parties ‘the opportunity to be heard’, whereas
Rule 8.4 refers to the SIAC Court ‘considering the views of all parties’. The difference in
wording reflects the recognition that the parties to the arbitration have a right to an oppor-
tunity to be heard by the tribunal on the important issue of consolidation, once the tribu-
nal has been constituted. Second, where Rule 8.9 applies, a tribunal will already have been
constituted. This is therefore an additional factor to be taken into account in the decision on
whether a consolidation should be ordered. Third, Rule 8.4 includes a proviso that even if
the SIAC Court has rejected a consolidation application made under Rule 8.1, a party may
still apply to the tribunal under Rule 8.7. For obvious reasons, no similar proviso is included
in Rule 8.9.

10. Rule 8.10

Where an application for consolidation is granted under Rule 8.9, the Court may revoke the
appointment of any arbitrators appointed prior to the decision on consolidation.
7.88 Rule 8.10 is largely analogous to Rule 8.6—discussed above—except that where Rule 8.10
applies, the tribunal would already have been constituted. It is significant that, for obvious
reasons, the decision on revocation is made by the SIAC Court, not the tribunal.

11. Rule 8.11

The Court's decision to revoke the appointment of any arbitrator under Rule 8.6 or Rule 8.10
is without prejudice to the validity of any act done or order or Award made by the arbitrator
before his appointment was revoked,
7.89 Rule 8.11 sets out an important reservation that notwithstanding the revocation of the
appointment of any arbitrator, all prior acts, orders or awards made by any arbitrator before
the revocation shall remain valid. This rule is analogous to Rule 7.7, which is discussed above.
In addition, Rule 8.11 also applies to the revocations made under Rule 8.10, which caters

128
 D. Rule 8—Consolidation

to situations where the tribunal has already been constituted. Thus, it is clear that the revo-
cation of the appointment of any arbitrator does not affect the validity of any act, order or
award previously made by the tribunal.

12. Rule 8.12

Where an application for consolidation is granted under Rule 8.4 or Rule 8.9, any party who
has not nominated an arbitrator or otherwise participated in the constitution of the Tribunal
shall be deemed to have waived its right to nominate an arbitrator or otherwise participate in
the constitution of the Tribunal, without prejudice to the right of such party to challenge an
arbitrator pursuant to Rule 14.
As discussed in paragraphs 7.39 and 7.40 above, the parties’ participation in the constitu- 7.90
tion of the tribunal is of utmost importance to the procedural integrity of an arbitration
proceeding.
Rule 8.12 is analogous to Rule 7.12, which is discussed above. In short, Rule 8.12 provides 7.91
that where a consolidation application is granted, any party who has not had an opportunity
to participate in the constitution of the tribunal ‘shall be deemed to have waived its right’
to so participate in the constitution of the tribunal. As in the case of Rule 7.12, this waiver
is without prejudice to the right of such a party to challenge an arbitrator pursuant to Rule
14 (which deals with the quite different situation of a challenge relating to the arbitrator's
impartiality or independence or lack of agreed qualifications).
Rule 8.12 is in effect a contractual waiver of a party’s right to challenge an award subse- 7.92
quently, on the basis that the party has not had an opportunity to participate (in full or in
part) in the constitution of the tribunal. While such a deemed waiver may well be recognized
be ae ee an advance or deemed waiver may be void as a matter ie of ik policy

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 8
FORMATION AND CHALLENGE OF THE
ARBITRAL TRIBUNAL
(SIAC RULES 9 TO 18)

A. Rule 9—Number and Appointment of a Rule 13.5 8.80

8.02 6. Rule 13.6 8.82
Arbitrators
Rule 9.1 8.03 E Rule 14—Challenge of Arbitrators 8.87
Rule 9.2 8.12 i. Rule 14.1 8.88
Rule 9.3 8.12 2. Rule 14.2 8.89
Rule 9.4 8.15
G. Rule 15—Notice of Challenge 8.90
Rule 9.5 8.17 Rule 15.1 8.92
Rule 9.6 8.18 Rule 15.2 8.95
be
bs
OD
3 Administrative secretaries 8.22 Rule 15.3 8.97
B. Rule 10—Sole Arbitrator 8.26 Rule 15.4 8.99
1. Rule10.1 8.27 Rule 15.5 8.101
2. Rule 10.2 8.29 S|
DAVRWN
Rule 15.6 8.106
C. Rule 11—Three Arbitrators 8.34 i. Rule 16—Decision on Challenge 8.108
1. Rulell.1 8.34 as Rule 16.1 8.109
2. Rule11.2 8.38 ye Rule 16.2 8.111
3. Rule 11.3 8.41 3 Rule 16.3 8.112
D. Rule 12—Multi-party Appointment of 4. Rule 16.4 8.113
Arbitrator(s) 8.45 I. Rule 17—Replacement of an Arbitrator 8.116
1. Rule 12.1 8.45 1. Rule 17.1 8.116
2. Rule 12.2 8.47 Z, Rule 17.2 8.118
E. Rule 13—Qualifications of Arbitrators 8.49 = Rule 17.3 8.120
Rule 13.1 8.53 h. Rule 18—Repetition of Hearings in the
Rule 13.2 8.70 Event of Replacement of an Arbitrator 8.122
Rule 13.3 8.72 1. Rule 18 8.122
|AON
Rule 13.4 8.74

8.01 The ability of parties to influence the constitution of their arbitral tribunal is an important mani-
festation of party autonomy in international arbitration. The means by which parties can do
so pursuant to Rules 9 to 13 are first addressed in this chapter. It is followed by a consideration
of the procedures for, and consequences of, a party challenging an appointed arbitrator under
Rules 14 to 18.

130
 A. Rule —Number and Appointment of Arbitrators

A. Rule 9—Number and Appointment of Arbitrators

Parties can agree to have their disputes resolved by a SIAC tribunal comprising one or three 8.02
arbitrators.' In the absence of an agreement between the parties, the default position under
Rule 9.1 is that a sole arbitrator will be appointed.?

1. Rule 9.1

A sole arbitrator shall be appointed in any arbitration under these Rules unless the parties have
otherwise agreed; or it appears to the Registrar, giving due regard to any proposals by the par-
ties, that the complexity, the quantum involved or other relevant circumstances of the dispute,
warrants the appointment of three arbitrators.
a. Parties may agree to one or more arbitrators
Parties may agree to have their disputes determined by a sole arbitrator, which is generally 8.03
less expensive and quicker to resolve disputes than a three-person tribunal.3 There is also no
pressure on a sole arbitrator to compromise in deliberations, as can be the case with three-
person tribunals, two members of which are usually nominated by the parties.
There are perceived drawbacks, however, to having a sole arbitrator. It can be difficult once 8.04
a dispute arises for the parties to reach agreement on the identity of the sole arbitrator, thus
leaving the choice to an appointing authority, who, despite the best of intentions, may be
unfamiliar with the nuances of the dispute.* Three-person tribunals not only allow each
party to nominate an arbitrator, but parties are statistically more likely to agree on the pre-
siding arbitrator in a three-person tribunal than to reach an agreement on a sole arbitrator.°
Further, the nomination of an arbitrator by each party lets each party feel it has a voice, 8.05
albeit one that is required to remain independent and impartial, during the tribunal’s delib-
erations. A three-person tribunal may also ensure a more thorough consideration of all the

' For a discussion on whether parties can agree a different number of arbitrators under the SIAC Rules, see
a [8.06].
a The default position is reversed under the SIAC Investment Rules, see Ch 19.
3 According to SIAC, and bearing in mind that actual costs will depend on the amount in dispute, the
average cost of a sole arbitrator is reportedly US$31,497, compared to an average cost of US$143,133 for a
three-member tribunal. The average SIAC Secretariat costs are reportedly US$7,710 and US$11,238 for sole
arbitrator and three-person tribunal cases, respectively. (Counsel fees are an additional expense to be borne.)
SIAC has also reported that the average duration of a SIAC arbitration is 13 months for sole arbitrator cases and
15.3 months when a three-member tribunal has been appointed. The statistics are based on a survey of 98 cases
commenced and concluded between 1 April 2013 and 31 July 2016. Thus, it excludes cases which had either
started before 1 April 2013 or were still on-going at the cut-off point, which could have an impact in particu-
lar on the duration statistics. ‘SIAC Releases Costs and Duration Study’, available at <http://www.siac.org.sg/
images/stories/ press_release/SIAC%20Releases%20Costs%20and%20 Duration%20Study_10%200ct%20
2016.pdf> (accessed 21 January 2017).
4 Alternatively, the parties could agree a hybrid solution. In one SIAC case the parties had agreed that if no
agreement could be reached on the identity of the sole arbitrator, the dispute would be decided by three arbitra-
tors, with each party having the ability to nominate an arbitrator.
5 A sole arbitrat or by the parties in only 23.5 per cent of ICC cases in 2015. In contrast, parties
was agreed
were able to agree on a presiding arbitrator directly in nine per cent and indirectly through an agreement of
the co-arbitrators in 49.5 per cent ofICC cases in oisearn aoe ment — ing ——
appointed the presiding arbitrator, either directly or ont one parties,intheremaining 41.
per cent ofICC cases in 2015: ICC, ‘2015 Statistical Report’ (2016) JCC Dispute Resolution Bulletin 2016,
Issue 1.

131
 Formation and Challenge of The Arbitral Tribunal
i erate tsp tet a
Table 8.1 Appointment of arbitrators

2012 2013 2014 2015 2016

Appointments under SIAC Rules 105 145 99 116 273

Appointments under other sets co CCUG ll 68
of rules and ad hoc appointments
Total 167 148 114 127 341

2011 2012 2013 2014 2015 2016

Sole arbitrator tribunals 82 155 6114 83 86159

Two-member tribunals 0 0 8 0 0 2
Three-member tribunals 13 12 21 31 40 180
Adjudicator 0 0 5 0 1 0
Total 9§ 167 148. 14 27 34

issues. It allows differences in culture, language, legal system, and industry specialization
relevant to a particular dispute to be taken into account in the tribunal deliberations.
8.06 Rule 9.1 allows the parties to agree to have a tribunal constituted with more than three
arbitrators or indeed with just two arbitrators. Two-member tribunals have been appointed
under the SIAC Rules.§ While a four-member tribunal has been accepted by the ICC,’ it
is yet to be seen in SIAC arbitrations. A panel of five adjudicators has been appointed by
SIAC for an ad hoc adjudication. Some national laws permit parties to have their disputes
resolved by an even number of arbitrators,® despite the risk of deadlock. At least one well-
respected commentator has suggested that five arbitrators should be appointed for complex
cases involving State bodies.?
8.07 While traditionally the majority of SIAC cases were determined by a sole arbitrator, this
has recently changed as reflected in Table 8.1. This may change, however, as the amounts in
dispute and the complexity of the issues for determination in SIAC arbitrations continue to
increase.

b. Presumption in favour ofa sole arbitrator in the absence ofan agreement ofthe parties
8.08 In the absence of an agreement of the parties on the number of arbitrators, the SIAC Rules
provide for the appointment of asole arbitrator unless the Registrar considers that a three-
person tribunal is more appropriate.'°

® The SIAC President appointed arbitrators in eight cases involving two-member tribunals in 2013: SIAC,
‘Annual Report 2013’ (2013) 10.
a and EA Schwartz, A Guide to the ICC Rules ofArbitration (2nd edn, Kluwer Law International
2005) 142.
® English law provides for a rebuttable presumption in favour of having an uneven number of arbitra-
tors: Arbitration Act 1996 (UK), s 15(2). In Singapore, AA, s 12(1) provides that: ‘The parties are free to deter-
mine the number of arbitrators.’ IAA, s 9 also allows the parties to agree on the number of arbitrators.
* Toby Landau QC, ‘Saving Investment Arbitration from Itself’, 2011 Freshfields Bruckhaus Deringer
Arbitration Lecture at the University of London, 30 November 2011. Thus, the SIAC Investment Rules allow
for the appointment of any odd number of arbitrators, see Ch 19.
'0 SIAC Rules (2016), Rule 9.1 is consistent in that regard with IAA, s 9 which, in turn, reverses the rule
in the 1985 UNCITRAL Model Law, Art 10(2) that three arbitrators shall be appointed in the absence of an
agreement of the parties.

132
 A. Rule 9—Number and Appointment of Arbitrators

Che Registrar will usually only exercise his or her discretion to appoint three arbitrators if 8.09
requested to do so by one of the parties. The factors that the Registrar will consider when
determining whether a case warrants three arbitrators include the complexity of the issues in
dispute, the quantum ofthe claims and any counterclaims, the need for particular linguistic
skills or industry experience which cannot be found in any one individual, the application
of different laws, and circumstances demanding special cultural sensitivity. The Registrar is
also more likely to appoint three arbitrators if a State is involved, regardless of the amount
in dispute."
The Registrar cannot exercise his or her discretion to appoint three arbitrators if the parties 8.10
have agreed to have their dispute determined by a sole arbitrator. In NCC International AB
v Land Transport Authority ofSingapore’? the Registrar rejected the claimant's request under
Rule 5.1 of the 2007 SIAC Rules (equivalent to Rule 9.1 in the 2016 SIAC Rules) to have
three arbitrators appointed on the basis that it would be inconsistent with the parties’ agree-
ment to use a sole arbitrator.'3 The claimant applied to the Singapore High Court to have
the Registrar's decision overturned. In dismissing the application, the High Court held that
the Registrar's discretion to determine the number of arbitrators was never meant to apply
where the parties had agreed the number of arbitrators. Tay Yong KwangJof the High Court
noted: ‘the words “unless the parties have agreed otherwise” in r 6 of the 1997 SIAC Rules
[in which Rule 5.1 of the 2007 SIAC Rules had its genesis] encapsulate the supremacy of
party autonomy ’.'4
There is, however, one exception to the principle that an agreement of the parties on the 8.11
number of arbitrators is conclusive. Specifically, a sole arbitrator may be appointed by the
SIAC President for an expedited arbitration conducted under Rule 5 even if the parties had
agreed to have their disputes resolved by a three-person tribunal.'> The SIAC President will
consider the complexity of the dispute, the quantum involved, and any agreement of the
parties when determining whether a sole arbitrator should hear an expedited case. The SIAC
President should also consider any submissions from the parties and whether the contract at
issue was signed before 1 July 2010 (when the rules and provisions for an expedited procedure
first came into force under the SIAC Rules).'® The Singapore High Court recently afirmed

"! Ifa dispute involving a State is conducted under the SIAC Investment Rules, the default position is that
three arbitrators will be appointed, see Ch 19.
‘2 NCC International AB v Land Transport Authority ofSingapore [2009] 1 SLR(R) 985 (Singapore High
Court).
'3 The High Court interpreted the parties’ agreement to appoint ‘an arbitrator’ to be an agreement to
int a sole arbitrator.
4 NCC International AB v Land Transport Authority ofSingapore(n 12) para38.
'S In W Company v Dutch Company and Dutch Holding Company [2012] 1 SAA 97, theparties had agreed in
their contract to a tribunal of three arbitrators. The claimant, however, successfully applied for the arbitration
to be conducted under the expedited procedure under the SIAC Rules (2010), Rule 5 which provides that a
sole arbitrator shall be appointed unless the SIAC Chairman (a function now performed by the SIAC President
under the SIAC Rules (2013 and 2016)) determines otherwise. After hearing submissions from the parties and
despite the objections of the respondent, the SIAC Chairman appointed a sole arbitrator in accordance with
Rule 5.2(b). The respondent's contention that the tribunal had been invalidly constituted was then rejected by
the sole arbitrator inthe final award on the grounds that the parties had chosen the SIAC Rulesin their entirety,
including the expedited procedure, to govern the arbitration.
16 cf ICC Rules (2017), Art 29(6) which expressly provides that the ICC’s emergency arbitrator provi-
sions do not apply toarbitrations relating toarbitration agreements entered into before the 2017 ICC Rules
came into force; HKIAC Rules (2013), Rule 1.4 which expressly provides that the HKIAC’s new emergency

133
 Formation and Challenge of TheArbitral Tribunal
ee eer RN eID ail NS
in the
this analysis, which was explained at paragraph [7.10] ofthe first edition of this book,
case of AQZ v ARA [2015] 2 SLR 972."” There, the High Court approved the appointment
of a sole arbitrator by the SIAC President despite the parties having agreed in their contract
of December 2009 to have a three-person tribunal, which pre-dated SIAC’s adoption of the
expedited procedures on 1 July 2010. The High Court noted that the complainant seller had
not at the relevant time objected to the SIAC President's decision to appointa sole arbitrator
on the basis that the parties had entered into their contract before the expedited procedure
on which the SIAC President had relied had come into force. The Court also noted that there
was no evidence that the SIAC President had not taken into account the date of the contract
when he decided to approve the buyer's application to have the arbitration expedited.-

2. Rule 9.2

If the parties have agreed that any arbitrator is to be appointed by one or more of the parties, or by
any third person including by the arbitrators already appointed, that agreement shall be deemed
an agreement to nominate an arbitrator under these Rules.

3. Rule 9.3

In all cases, the arbitrators nominated by the parties, or by any third person including by the
arbitrators already appointed, shall be subject to appointment by the President in his discretion.
a. Appointment ofarbitrators by the SIAC President
8.12 Parties cannot ‘appoint’ arbitrators directly to a tribunal, even if they purport to do so in
their agreement. The parties have the right to ‘nominate’ a candidate and thereafter the SLAC
President makes the formal appointment.
8.13 Parties have a broad discretion as to whom they nominate as arbitrator. They are not obliged
to nominate an arbitrator listed on the SIAC Panel of Arbitrators.
8.14 While all arbitrator nominations are subject to confirmation by the SIAC President under
Rule 9.3, the President will exercise his or her discretion to reject a party-nominated arbitra-
tor in exceptional circumstances. This power has only been exercised in the clearest of cases.
Thus, SIAC’s practice is to give effect to the nominations of the parties and leave it to the
parties to challenge the arbitrator, if necessary.
With that said, parties to a SIAC arbitration cannot agree to have someone serve as an arbi-
trator who is known to be corrupt or to lack independence or who is quite clearly out of his
or her depth. The SIAC President may also reject a nominee who lacks agreed qualifications,
necessary language skills for the arbitration, knowledge of the applicable law, or sufficient

arbitrator and consolidation provisions do not apply to arbitrations relating to arbitration agreements entered
into before the new HKIAC rules came into force, unless otherwise agreed by the parties; and ACICA Rules
(2016), Rule 2.5 which expressly provides that ACICA’s new consolidation and joinder provisions do not apply
to arbitrations relating to arbitration agreements entered into before the new ACICA rules came into force,
unless otherwise agreed by the parties. ;
"7 The parties had entered into a contract in December 2009, which provided for arbitration at SLAC with
a three-person tribunal. This was seven months before the Expedited Procedure was introduced in the SIAC
Rules 2010, The Singapore High Court first rejected the plaintiffs contention that the 2007 SIAC Rules (which
were in force when the contract was agreed) should apply, finding the applicable rules to be the 2010 SIAC

134
 A. Rule 9—Number and Appointment of Arbitrators

time to devote to the arbitration. '* Ultimately, the principle of party autonomy has its limits,
and must yield to the need for SIAC to preserve the reputation and integrity of the arbitra-
tions it administers.

4. Rule 9.4

The President shall appoint an arbitrator as soon as practicable. Any decision by the President
to appoint an arbitrator under these Rules shall be final and not subject to appeal.

The SIAC President is required to appoint an arbitrator as soon as practicable. While no 8.15
time limits are set, as a matter of practice the SIAC President normally appoints a nominee
within five business days of all requisite formalities being fulfilled. (Emergency arbitrators
are usually appointed within one day of a request for an emergency arbitrator in accordance
with Schedule 1 to the 2016 SIAC Rules.)

a. The SIAC President's decision isfinal

The SIAC President's decision to appoint an arbitrator or to reject a nominee is final. It is 8.16
not subject to appeal.'? With that said, a party retains its right to challenge an arbitrator's
appointment on the basis of a lack of qualifications or doubts about his or her independence
pursuant to Rules 14 to 16.

5. Rule 9.5

‘The President may appoint any nominee whose appointment has already been suggested or
proposed by any party.
The SIAC President may choose an arbitrator on a party's behalf if it fails to do so pursuant 8.17
to the President’s powers under Rules 10.2, 11.2, 11.3, 12.1, and 12.2. The mere fact that
someone has been proposed by a party at an earlier stage of the appointment process (and
rejected by its opponent) will not preclude him or her from being appointed by the SIAC
President (unless such a constraint was agreed by the parties).
6. Rule 9.6

The terms of appointment of each arbitrator shall be fixed by the Registrar in accordance
with these Rules and any Practice Notes for thé time being in force, or in accordance with the
agreement of the parties.
a. Terms ofappointment
The Registrar sets the terms of appointment of each arbitrator. The terms of appointment 8.18
are derived from the SIAC Rules, SIAC Practice Notes, and the SIAC Code of Ethics for an

Rules (which were in force when the arbitration started), including the expedited procedure provisions (paras
124-127). The High Court proceeded to find that the SIAC expedited procedure can be applied even if it is
inconsistent with the terms of the parties’ arbitration agreement entered into before the SIAC expedited pro-
cedure came into force (paras 128-135).
18 SIAC Practice Note forAdministered Cases (2 January 2014) para 5. By way ofillustration, the LCIA
Court hasrejected a party's nominee forarbitrator on at least three occasions. In one case, the nominee did not
have the requisite language skills; inanother, the nominee was not a lawyer and had no prior arbitration experi-
ence; and in the third case the nominee was on the board of the nominating company and thus lacked inde-
pendence: P Turner and R Mohtashami,AGuide tothe LCIA Arbitration Rules (OUP 2009) paras 4.73-4.74.
19 SIAC Rules (2016), Rules 9.4, 40.1-40.2. These provisions are reinforced for arbitrations seated in
Singapore by the 1985 UNCITR Model ALLaw, Art 11(5), applicable in Singapore pursuant toIAA, s 3(1)

135
 Formation and Challenge of The Arbitral Tribunal

Arbitrator (2015). The standard terms are sent to all prospective arbitrators, who are asked
to confirm their concurrence by signing and returning a copy of the SIAC Code ofEthics for
an Arbitrator (2015) before they are appointed.
8.19 The terms of appointment include: the obligation to be independent and impartial;?°
the corollary obligation to disclose any circumstance that may give rise to justifiable
doubts as to the arbitrator’s impartiality or independence;*' the obligation to act fairly,
expeditiously, and economically;?* the obligation to avoid any unilateral communica-
tions with any party or its representatives;?3 and the obligation to keep the proceedings
confidential.”
8.20 The arbitrator’s remuneration is set by the Registrar in accordance with the SIAC Schedule
of Fees. Consistent with the approach adopted by other arbitral institutions such as the ICC
and SCC (but not HKIAC or the LCIA),?5 SIAC arbitrators are paid on an ad valorem basis
(ie based on the amount in dispute). This is discussed in Chapter 15. For now it bears noting
that the ad valorem method of remuneration is meant to incentivize arbitrators to deter-
mine disputes expeditiously and efficiently as more time spent on a matter is not necessarily
rewarded financially.26
8.21 The concluding words of Rule 9.6 suggest that the parties may reach an agreement on arbi-
trator remuneration different to that prescribed in the SIAC Schedule of Fees, a point which
is confirmed by Rule 34.1.2” As discussed in Chapter 15 (paragraphs [15.16 to 15.21]), par-
ties may wish to go ‘off-scale’ or agree to a different method for calculating arbitrator remu-
neration, such as an agreed hourly rate, to secure the services of certain arbitrators. There
may bea perceived need to do so in circumstances where the quantum in dispute is nota true
reflection of the importance of a claim, such as where significant issues of principle need to
be determined, or where a successful claim could expose a party to more claims. In any event,
the SIAC Rules place no limits on the circumstances in which parties may agree to an alter-
native fee structure.”8 In contrast, while the ICC Court may fix the fees of arbitrators at an
amount higher or lower than that which would result from the application of the ICC scale

which provides: ‘A decision [ie the appointment of an arbitrator] on a matter entrusted by paragraph (3) or
(4) of this Article to the court or other authority specified in Article 6 [ie the High Court and the SIAC
Chairman pursuant to IAA, s 8] shall be subject to no appeal.’
20 SIAC Rules (2016), Rule 13.1; SIAC Practice Note for Administered Cases (n 18) para 5; SIAC Code of
Ethics for an Arbitrator (2015) para 1.1.
21 SIAC Rules (2016), Rule 13.4; SIAC Code of Ethics for an Arbitrator (2015) paras 2.12.2.
22 SIAC Rules (2016), Rules 19.1 and 41.2; SIAC Code of Ethics for an Arbitrator (2015) para 1.3.
23 SIAC Code of Ethics for an Arbitrator (2015) para 4.3.
24 SIAC Rules (2016), Rules 39.1—39.2; SIAC Code of Ethics for an Arbitrator (2015) para 7.1.
?° HKIAC Rules (2013), Rule 10.1 provides that in the absence of an agreement of the parties HKIAC arbi-
trators shall be paid based on an hourly rate. LCIA arbitrators are also paid on an hourly basis: LCIA Schedule
of Arbitration Costs (2014), section 2(i).
26 The potential impact of any delays on the tribunal’s remuneration is reinforced by SIAC Code of Ethics
for an Arbitrator (2015) para 1.3, which provides that the arbitrator understands that ‘the Registrar of SIAC will
take into account any failure by the prospective arbitrator to discharge his duties to ensure the fair, expeditious,
economical and final determination of the dispute when fixing the quantum of fees payable to the arbitrator’,
7 SIAC Rules (2016), Rule 34.1 relevantly provides: ‘The parties may agree to alternative methods of deter-
mining the Tribunal’s fees prior to the constitution of the Tribunal.’
78 SIAC Rules (2016), Rules 9.6 and 34.1. SIAC Practice Note for Administered Cases (n 18) para
14
provides that the Registrar may allow an additional fee over that prescribed in the SIAC Schedule of
Fees in

136
 B. Rule 10—Sole Arbitrator

in ‘exceptional circumstances’, separate fee arrangements, such as hourly rates, are expressly
forbidden by the ICC.?9

7. Administrative secretaries
The appointment of administrative secretaries (also known as tribunal secretaries) is a 8.22
widely-accepted feature of international arbitration.39 SIAC has released a Practice Note
on the appointment of administrative secretaries, as well as their fees and expenses.?' The
appointment of administrative secretaries is also contemplated in SIAC Rules 38 and 39,
which provide that secretaries are protected by the same exclusion ofliability and bound by
the same obligations of confidentiality as members of the tribunal and officers of SIAC.
Administrative secretaries may be appointed in ‘appropriate cases’.33 No guidance is pro- 8.23
vided on which cases are ‘appropriate’. In practice, the issue is left to the discretion of the
tribunal and ultimately the parties, whose consent is required for the appointment of an
administrative secretary.34
Before his or her appointment, a proposed administrative secretary must execute the same 8.24
declaration of independence, impartiality, and confidentiality as required of the arbitrators.3°
The Practice Note provides that administrative secretaries shall assist the tribunal in ‘admin- 8.25
istrative matters’, which are not defined. Typically, administrative secretaries assist with
logistical arrangements (such as preparations for a hearing), conduct routine communica-
tions with the parties, and prepare drafts of procedural orders and non-substantive parts of
awards,36

B. Rule 10—Sole Arbitrator

The primary function of Rule 10 is to provide a default procedure for the nomination and 8.26
appointment of a sole arbitrator should the parties fail to agree on a candidate.

exceptional circumstances. This would appear to be directed towards circumstances in which the parties have
not agreed an alternative fee structure but the Registrar still considers that an additional fee should be paid.
29 ICC Rules (2017), Art 38(2) and App III, Art 2(4). Hourly rates are the default position under the rules
of the HKIAC, ACICA, ICDR, and LCIA (HKIAC Rules (2013), Art 10.1; ACICA Rules (2016), Rule 45.1;
ICDR Arbitration Rules (2014), Art 35.2; and LCIA Schedule of Arbitration Costs (2014) para 2.2(i)).
30 Queen Mary University of London's School of International Arbitration and White & Case, ‘2015
International Arbitration Survey: Improvements and Innovations in International Arbitration’ (2015) 42-45,
available at <http://www.arbitration.qmul.ac.uk/docs/164761.pdf> (accessed 10 October 2017).
31 SIAC Practice Note on the Appointment of Administrative Secretaries (2015). The fees and expenses of
tribunal secretaries are discussed in Ch 15.
32 The HKIAC Rules (2013), Art 13.4, the Swiss Rules (2012), Art 15, and the SCC Rules (2017), Art 24
decay provide for the appointment of tribunal secretaries. as
SIAC Practice Note on the Appointment of Administrative Secretaries (2015) para 2.
34 SIAC Practice Note on the Appointment of Administrative Secretaries (2015) para 2.
35 SIAC Practice Note on theAppointment of Administrative Secretaries (2015) para 3.
and Hulley
Limitedsal
36 Russia argued in The Russian Federation v Veteran Petroleum Limited, Yukos Univer
Limited, C/09/477160/HA ZA 15-1, 15-2 and 15-112, Decision of the Hague District Court,
20 April 2016 that the relevant awards should be set aside because, among other grounds, the tribunal sec-
retary had allegedly overstepped his duties and authored substantive parts of the award. See also, IBA, “The
Role of the Tribunal Secretaryin International Arbitration: A Call for a Uniform Standard’, 2015, available
at <htp://www.ibanet.org/Article/NewDetail.aspx? 1cfc-3bc2-48d3
ArticleUi 5£542>
d=9874
-959e-e18d793
(accessed 11 April 2017); and ICCA, ‘Young ICCA Guide onArbitral Secretaries’, 2014, availableat<http://

137
 Formation and Challenge of The Arbitral Tribunal

1. Rule 10.1

Ifasole arbitrator is to be appointed, either party may propose to the other party the names
of one or more persons to serve as the sole arbitrator. Where the parties have reached an agree-
ment on the nomination of a sole arbitrator, Rule 9.3 shall apply.

a. The parties right to nominate a sole arbitrator jointly

8.27 Parties should make every effort (after a dispute has arisen) to reach an agreement on
a sole arbitrator if one is to be appointed to resolve their dispute.?” Parties can use any
method for agreeing on a candidate. For instance, each side can propose one or more can-
didates. When doing so, the parties may consult the SIAC Panel of Arbitrators available
on the SIAC website (although they are not constrained to choose someone on the list).
Alternatively, the parties can use a list procedure whereby each party proposes a list of
candidates to the other party on the understanding that each will rank the other's list of
names in order of preference. The parties can then discuss the listed names with a view to
reaching an agreement. A modification to the list procedure, which can be quite effective
in practice, is for the parties to discuss first what they consider to be the appropriate char-
acteristics of the presiding arbitrator. Once that criteria is agreed (or, even if not agreed,
at least discussed) the parties are more likely to settle on a common candidate. Another
option is for the parties to request a third person or body (other than the SIAC Secretariat
which does not offer the service) to nominate candidates for the parties’ consideration.
While the SIAC Rules are silent on the point, one arbitral institution expressly allows
the parties to agree that only one party has the right to nominate the sole or presiding
arbitrator.38
8.28 As noted in part A, an agreement of the parties does not guarantee a candidate’s appoint-
ment. The sole arbitrator must be approved and formally appointed by the SIAC President
pursuant to Rule 9.3.
2. Rule 10.2

If within 21 days after the date of the commencement of the arbitration, or within the period
otherwise agreed by the parties or set by the Registrar, the parties have not reached an agree-
ment on the nomination of a sole arbitrator, or if at any time either party so requests, the
President shall appoint the sole arbitrator.

SRREEPITRT aaron eome-oraies cree RN ERE SR OE Se a Ne acianstalal

Met a orePublications/Young_IOCA.Guide.on.Arbieral_ Secretaries heml> (accessed 11

pril 2017).
37 While possible, it is not generally advisable for parties to agree in their contract a specific individual who
will perform the role of arbitrator in the event a dispute arises. The individual may not be available at the time
an arbitration begins, may have become conflicted, may be ill or have passed away, or may not be suitable for
the specific dispute, thereby potentially leading to a deadlock or the loss of a party's opportunity to influenc
e
the constitution of the tribunal. In any event, the parties should not provide in their contract for their disputes
to rhe thaa a = a group of persons (eg a law firm). As only a natural person can be an arbitra-
tor, there is a risk that such an arbitration agreement will be invalid and ineffective, see Crowther
Rayment and another (2015) EWHC 427 (Ch) at [30-33]. ~ eae
38 LCIA Rules (2014), Art 7.3.

138
 B. Rule 10—Sole Arbitrater

4. Default procedure for the nomination and appointment of a sole arbitrator

Parties have a limited time within which they can seek to reach an agreement on a sole arbi- 8.29
trator. This ensures that one or more parties cannot derail the arbitration simply by refusing
to cooperate in the constitution of the tribunal.
Rule 10.2 provides that in the event the parties fail to reach an agreement on a sole arbitrator 8.30
within 21 days after the date of the commencement of the arbitration (ie the receipt by the
Registrar of the complete Notice of Arbitration), or at any time if a party so requests,*° the
SIAC President ‘shall appoint the sole arbitrator’.*' The Registrar may decide“? or the parties
may agree to extend or reduce the 21-day time limit referenced in Rule 10.2 for the parties
to reach an agreement on a sole arbitrator.
When required to act under Rule 10.2, the SIAC President generally chooses a candidate 8.31
from the SIAC Panel of Arbitrators (which, as already noted, is nota constraint on the parties
when making their nominations). There are presently over 420 arbitrators from 39 coun-
tries on the SIAC Panel of Arbitrators.4? Admission requirements are strict. Candidates for
admission to the SIAC panel are required to: have at least ten years’ post qualification experi-
ence; have a fellowship from the Singapore Institute of Arbitrators (SIArb), the Chartered
Institute of Arbitrators (CIArb), or any comparable professional arbitration institution; have
experience as an arbitrator in five or more cases; have completed at least two commercial
arbitral awards; and be aged between 30 and 75 years. The SIAC President may appoint an
arbitrator who is not on the SIAC Panel of Arbitrators but who appears on SIAC’s so-called
‘reserve list’, which is often used for relatively low-value disputes.”
The SIAC President must take into account any criteria for the appointment of arbitrators 8.32
agreed by the parties in their contract or set by relevant legislation.4* The SIAC Practice Note
for Administered Cases further provides that ‘in all cases, the objective is to appoint an arbi-
trator with the attributes of integrity and competence, who is independent and impartial,
and who will be perceived as such by the parties’.4”
For cases with a large amount in dispute, involving State parties or raising complicated 8.33
questions of law, the SIAC President may choose an arbitrator in consultation with two or
more members of the SIAC Court and with the assistance of the SIAC Secretariat.*® The

39 SIAC Rules (2016), Rule 3.3.

40 Such a request would confirm that the parties are unlikely to reach an agreement on a candidate, thereby
requiring the SIAC President to choose someone on their behalf.
41 SIAC Rules (2016), Rule 10.2 refers to the ‘appointment’ of an arbitrator by the SIAC President. The
SIAC President appoints all arbitrators pursuant to Rule 9.3. Thus, the reference to ‘appointment’ in Rule 10.2
refers to both the selection of an arbitrator candidate on a party’s behalf and hisorher appointment by the SIAC
President.
42 SIAC Rules (2016), Rules 2.6 and 10.2.
43 SIAC Panel of Arbitrators, available at <http://www.siac.org.sg/our-arbitrators/siac-panel> (accessed 13
October 2016).
44 Standards for Admission to the SIAC Panel of Arbitrators, available at <http://www.siac.org.sg/our-
arbitrators/standards-for-admission-to-siac-panel> (accessed 13 October 2016).
ed(n 18) para8.
Cases
45 SIAC Practice Note forAdminister
ed(n 18) para5.
Cases
46 SIAC Practice Note forAdminister
ed(n 18) para 5.
Cases
47 SIAC Practice Note forAdminister
ed (n 18) para6.
48 SIAC Practice Note forAdministerCases
139
 Formation and Challenge of The Arbitral Tribunal

SIAC President is precluded from selecting a SIAC Director or a SIAC Court member as an
arbitrator except in ‘exceptional circumstances’, such as the appointment of an emergency
arbitrator.*?

C. Rule 11—Three Arbitrators

1. Rule 11.1

If three arbitrators are to be appointed, each party shall nominate one arbitrator.
8.34 Rule 11.1 reflects the principle now embodied in virtually all international arbitration
rules—and Singapore law*°—that, where there are to be three arbitrators, each party has the
right (although not inviolable) to nominate an arbitrator.
8.35 A number of considerations need to be weighed when choosing an arbitrator. Non-lawyers
can be appointed in SIAC arbitrations seated in Singapore.*' Knowledge of the governing
law, however, is generally desirable. The candidate should also be able to work in the lan-
guage of the arbitration, possess any agreed qualifications, have sufficient capacity to focus
on the arbitration and, above all, be independent and impartial.
8.36 Parties sometimes make the mistake of thinking it is in their interests to nominate an arbitra-
tor on whom they can depend fora favourable outcome. First, any obvious links between the
arbitrator and the nominating party are likely to lead to a challenge to the arbitrator under
Rule 14. Second, an obviously partial arbitrator will not be respected by the other members
of the tribunal and, as a result, is likely to have negligible influence on their decision mak-
ing. In such circumstances, the obviously partial arbitrator may choose to write a dissenting
opinion, but that is often of little value to the party which nominated him or her. The better
approach is to choose someone who will be open-minded to a party's arguments, while stead-
fastly remaining independent and impartial.
8.37 One should also have an eye towards the prospective presiding arbitrator when nominat-
ing an arbitrator for a three-person tribunal. It is important to nominate someone who will
be respected by the presiding arbitrator once he or she is appointed. A party may also wish
to nominate someone who will be willing to assist the parties in their search for a suitable
presiding arbitrator and, when doing so, be open to considering the views of the party that
nominated him or her.

2. Rule 11.2

Ifa party fails to make a nomination of an arbitrator within 14 days after receipt of a party’s
nomination of an arbitrator, or within the period otherwise agreed by the parties or set by the
Registrar, the President shall proceed to appoint an arbitrator on its behalf.

“9 SIAC Practice Note for Administered Cases (n 18) para 7. The SIAC President can corifirm the appoint-
ment of a SIAC Court member or Director if that person is nominated by one or more parties.
50 TAA, s 9A(1).
*" Legal Profession Act (Cap 161, 2009 Rev Ed) (Singapore), s 34(g).

140
 C. Rule 1 1—Three Arbitrators

a. Default procedure for three-person tribunals

In the event a party fails to nominate an arbitrator for a three-person tribunal in the time 8.38
prescribed by the SIAC Rules, the SIAC President will choose an arbitrator on the party's
behalfinorder to avoid unnecessary delay to the proceedings.*
Rule 11.2 seeks to answer the question of how much time a party has to nominate an 8.39
arbitrator for a three-person tribunal before losing its right to do so. But it answers that
question clearly only for respondents. It is the respondent that has to nominate an arbi-
trator within 14 days after, to use the words from Rule 11.2, ‘receipt ofa party’s [ie the
claimant's) nomination of an arbitrator’.53 The parties may agree to, or the Registrar
may set, an additional period of time within which the respondent should nominate an
arbitrator.™4
The claimant, on the other hand, should nominate an arbitrator in its Notice of Arbitration 8.40
pursuant to Rule 3.1(h), unless the parties have agreed otherwise.* A failure to do so could
in theory render the Notice of Arbitration incomplete (see Rule 3.3), thereby preventing
the arbitration from starting. In practice, however, SIAC has allowed arbitrations to com-
mence even when a claimant has not nominated an arbitrator in its Notice of Arbitration
provided it does so within a reasonable time thereafter (which Rule 11.2 would suggest is
14 days).

3. Rule 11.3

Unless the parties have agreed upon another procedure for appointing the third arbitrator,
or if such agreed procedure does not result in a nomination within the period agreed by the
parties or set by the Registrar, the President shall appoint the third arbitrator, who shall be the
presiding arbitrator.
a. Default procedure for the appointment ofa presiding arbitrator
The parties have the right under Rule 11.3 to agree on a candidate for presiding arbitrator, 8.41
failing which the SIAC President will select someone on their behalf.
The methods available to help parties agree on a sole arbitrator, which could also be used 8.42
when choosing a presiding arbitrator, are discussed in paragraph [8.27]. In addition, the
parties can agree to enlist the help of the party-nominated co-arbitrators, including asking
them to propose candidates for the parties’ consideration. (This is one of the reasons why
parties are statistically more likely to reach an agreement on a presiding arbitrator than on a
sole arbitrator.)

52 SIAC Rules (2016), Rule 11.2 refers to the ‘appointment’ of an arbitrator by the SIAC President. The
SIAC President appoints all arbitrators pursuant to Rule 9.3. Thus, the reference to ‘appointment’ in Rule 11.2
refers to both the selection of an arbitrator candidate on a party's behalf and his or her appointment by the SIAC
President.
53 SIAC Rules (2016), Rule 11.2 reflects Rule 4.1(d) which requires the respondent to nominate its arbitra-
tor within 14 days of receipt ofthe Notice of Arbitration.
54 SIAC Rules (2016), Rules 2.6 and 11.2.
an arbitra-
55 Fora discussion of Rule 3.1(h) and the circumstances in which a claimant need not nominate
tor inits Notice of Arbitration, see Ch 5, part C.

141
 Formation and Challenge of The Arbitral Tribunal
te ge i en
8.43 Rule 11.3 does not impose a time limit on the parties for reaching an agreement on the
presiding arbitrator. The parties are allowed to agree a time limit either in the arbitration
agreement or after a dispute arises, failing which the Registrar will fix a deadline.
8.44 Should the parties fail to agree on a presiding arbitrator within the prescribed period, the
procedures followed and the criteria considered by the SIAC President are largely the same
as those applicable for the SIAC President's selection of a sole arbitrator (see paragraphs
[8.29-8.33]).

D. Rule 12—Multi-party Appointment of Arbitrator(s)

1. Rule 12.1

Where there are more than two parties to the arbitration, and a sole arbitrator is to be
appointed, the parties may agree to jointly nominate the sole arbitrator. In the absence of
such joint nomination having been made within 28 days of the date of commencement of
the arbitration or within the period otherwise agreed by the parties or set by the Registrar, the
President shall appoint the sole arbitrator.
a. Appointment ofa sole arbitrator by multiple parties
8.45 Rule 12.1 provides that if all parties to a multi-party arbitration cannot agree on a sole arbi-
trator, the SIAC President shall choose an arbitrator on their behalf. This is, however, not
strictly necessary as Rule 10.2 already sets that as the general rule for sole arbitrator cases.
8.46 The unique operative effect of Rule 12.1 is that for multi-party arbitrations the default time
limit for the parties to agree on a joint nomination is extended from 21 days, as prescribed
in Rule 10.2, to 28 days after the date of commencement of the arbitration (ie receipt by the
Registrar of the complete Notice of Arbitration®®). An alternative period within which the
parties are to agree on a joint nomination for sole arbitrator can be agreed by the parties or
set by the Registrar.

2. Rule 12.2

Where there are more than two parties to the arbitration, and three arbitrators are to be
appointed, the Claimant(s) shall jointly nominate one arbitrator and the Respondent(s) shall
jointly nominate one arbitrator. The third arbitrator, who shall be the presiding arbitrator,
shall be appointed in accordance with Rule 11.3. In the absence of both such joint nominations
having been made within 28 days of the date of commencement of the arbitration or within
the period otherwise agreed by the parties or set by the Registrar, the President shall appoint
all three arbitrators and shall designate one of them to be the presiding arbitrator.
a. Appointment ofthree arbitrators by multiple parties
8.47 Since the famous decision of the French Court de Cassation in the Dutco case,5’ arbitral
institutions have sought to devise a means by which an arbitral tribunal in a multi-party

56 SIAC Rules (2016), Rule 3.3. .

*” Sociétés BKMI et Siemens v Société Dutco, Cour de Cassation, 7 January 1992, (1992) Revue de ‘Arbitrage
470 (French Court of Cassation). Dutco commenced an ICC arbitration against Siemens AG and BKMI in
1986. After the sole claimant nominated an arbitrator, the ICC Court ordered Siemens AG and BKMI to nom-
inate an arbitrator for ‘their side’. After initially refusing to do so, the two respondents made the nomination,

142
 E. Rule 13—Qualifications of Arbitrators

arbitration can be constituted in a manner fair to all parties. The approach adopted by SIAC
is for all three members of a three-person tribunal to be appointed by the SIAC President
unless each side successfully nominates one arbitrator.
In practice, this is most likely to present a concern for the claimant(s). If multiple claimants have 8.48
decided to join forces to bring a claim against one or more respondents, the chances are they
will be able to reach an agreement on their choice of arbitrator. Multiple respondents, however,
as in the Dutco case, may have disparate interests that prevent them from agreeing a candidate.
In those circumstances, and in the interests of procedural fairness, the claimant(s) will lose its
(their) nomination if one had been made and the SIAC President will select all three arbitrators
and designate one of them as the presiding arbitrator. (It is an open question whether Rule 12.2
should apply when multiple parties on one side—for example the claimants—successfully nomin-
ate an arbitrator, but a single party on the other side—for example a single respondent—fails to
make a nomination. In such circumstances, an argument could be made that Rule 11.2 should
apply.)

E. Rule 13—Qualifications of Arbitrators

SIAC arbitrators are required to possess certain qualities. Principally, an arbitrator should: be 8.49
independent and impartial; have integrity, competence, adequate knowledge of the language of
the arbitration, and any skills or knowledge agreed by the parties as being necessary; and have
sufficient capacity to be able to conduct the proceedings promptly and efficiently.58
An arbitrator should also possess any qualities required by the law of the seat of the arbitration. 8.50
Indonesian law, for instance, requires an arbitrator to be at least 35 years of age, have a minimum
of 15 years of experience ‘and active mastery in the field’. Judges, prosecutors, and government
and court officials cannot be appointed as arbitrators in Indonesia.*
For arbitrations seated in Singapore, parties can agree to the appointment of an arbitrator who 8.51
previously acted as a conciliator or mediator in the same dispute.
When drafting arbitration agreements, parties should be wary of prescribing any elaborate 8.52
qualifications or a combination of several qualifications for an arbitrator. To do so may sig-
nificantly limit the pool of available candidates once a dispute arises and potentially lead to a
deadlock.
1. Rule 13.1
Any arbitrator appointed in an arbitration under these Rules, whether or not nominated by
the parties, shall be and remain at all times independent and impartial.

but reserved their right to challenge the appointment procedure. The partial award subsequently rendered by
the tribunal was annulled by the French Cour de Cassation on the basis that the constitution of the tribunal
had been unfair to the two respondents. The Court held that ‘the principle of the equality of the parties in the
appointment of arbitrators is a matter of public policy (ordre public) [and] can be waived only after a dispute has
arisen’. For a discussion of the case, see H-L Devolvé, ‘Multipartism: The Dutco Decision of the French Cour
de Cassation’ (1993) 9 Arb Intl 197, 201.
58 SIAC Practice Note onAdministered Cases (n 18) para 5; SIAC Code ofEthics for anArbitrator (2015)
1
me Arbitration and Dispute Resolution, Law No 30 of 1999 (Indonesia), Art 12(1)-(2) (unofficial

6 IAA,
s16(3).
143
 Formation and Challenge of The Arbitral Tribunal
ee
ee

a. An arbitrator shall not act as an advocate for any party

8.53 Unlike the 2016 SIAC Rules, Rule 10.1 of the 2010 and 2013 SIAC Rules includes an
injunction against arbitrators acting as advocates for the parties that appointed them.®'Its
omission from the 2016 SIAC Rules,® however, does not signal that SIAC arbitrators
may now act as an advocate for their nominating party.°? Nonetheless, a good party-
nominated arbitrator will seek to ensure that the arguments raised by the party which
nominated him or her are at least considered by the remaining members of the tribunal.
b. Independence and impartiality
8.54 Rule 13.1 requires SIAC arbitrators to be independent and impartial when accepting an
appointment and at all times during the course of an arbitration.™ These qualities are essen-
tial to the fulfilment of an arbitrator's ‘quasi-judicial’ functions.®
8.55 The rich debate surrounding the concepts of independence and impartiality has included
disagreement as to whether the terms are in fact synonymous.* The SIAC Code of Ethics for
an Arbitrator (2015) presents a clear view that they are different, noting:
Partiality arises when an arbitrator favours one of the parties or where he is prejudiced in
relation to the subject matter of the dispute. Dependence [on the other hand] arises from
relationships between an arbitrator and one of the parties, or with someone closely connected
with one of the parties.°”
8.56 Impartiality requires an arbitrator to maintain ‘a certain distance in relation to his legal, pol-
itical and religious culture’.® The arbitrator should not enter the fray or be seen to be hostile
or aggressive towards a party.°°

61 SIAC Rules (2010 and 2013), Rule 10.1: ‘Any arbitrator, whether or not nominated by the parties, con-
ducting an arbitration under these Rules shall be and remain at all times independent and impartial, and shall
not act as advocate for any party.’ (Emphasis added.)
62 In contrast, the LCIA Rules (2014), Art 5.3, the CIETAC Rules (2015), Art 24, and the DIAC Rules
(2007), Art 9.1 maintain an express prohibition against arbitrators acting as advocates.
63 Arbitrator advocates used to be particularly common in domestic US arbitrations, where it was the prac-
tice for party-nominated arbitrators to be considered non-neutral unless an indication to the contrary was given.
E Gaillard andJ Savage (eds), Fouchard, Gaillard, Goldman on International Commercial Arbitration (Kluwer
Law International 1999) paras 1043-47; Born, Jnternational Commercial Arbitration (2nd edn, Kluwer Law
International 2014) 1796-797.
6 This is reiterated in the SLAC Code of Ethics for an Arbitrator (2015) para 1.1, which provides that a ‘pro-
spective arbitrator shall accept an appointment only if he is fully satisfied that he is able to discharge his duties
without bias’. An arbitrator's obligation to remain independent and impartial continues until the rendering of
the final award, including any additional awards or interpretations or corrections given under Rule 33.
6 Jivraj v Hashwani [2011] UKSC 40, para 41; “The arbitrator's ... functions and duties require him to rise
above the partisan interests of the parties and not to act in, or so as to further, the particular interests of either
party ... He is in effect a “quasi-judicial adjudicator”.’
© Prior to the publication of the 2012 edition of its rules, the ICC only expressly required an arbitrator to
be ‘independent’, which was interpreted as requiring the arbitrator to also be ‘impartial’: Derains and Schwartz,
ICC Rules ofArbitration (n 7) 116-21.
67 SIAC Code of Ethics for an Arbitrator (2015) para 3.1.
iesbede Boisséson, Le Droit Francais de L’Arbitrage Interne et International (2nd edn, GLN Joly 1990)

®° In Emerald Supplies Limited v British Airways [2015] EWHC 2201 (Ch), an English High Court judge
was forced to recuse himself from High Court litigation. The judge had complained to British Airways, the
defendant in the action, regarding the loss of his baggage on a flight to Italy (which was not in issue in the dis-
pute). The judge subsequently emailed the chairman of British Airways, signing in his judicial capacity and

144
 E. Rule 13—Qualifications of Artienstens

In Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd and another the Singapore 8.57
High Court ordered the removal of an arbitrator who had seemingly decided issues of law
before any hearings had taken place and had adopted an offensive tone in correspondence
with che claimant:
Much that I regret saying this, [the arbitrator] does not seem to be able to restrain himself from
entering into the fray. He seems to have forgotten that an arbitrator should always be detached,
rule only when necessary and even then only after hearing the parties. He seems prone to make
premature utterances ... The language used by [the arbitrator] is also far from measured. The
remarks are sarcastic, to the point of being hostile.”
In the same case, the Singapore High Court summarized the expectations of parties to an 8.58
arbitration thus:
Parties are entitled to expect from an arbitrator complete impartiality and indifference, both as
between themselves and with regard to the matters left to the arbitrator to decide. They are also
entitled to expect from him a faithful, honest and disinterested decision.”'
In an effort to ensure neutrality some arbitral institutions require a sole or presiding arbitrator 8.59
to have a nationality different from those of the parties.”? The SIAC Rules do not go that far.”3
For arbitrations seated in Singapore, however, the IAA requires the appointing authority (ie the
SIAC President) to take into account the advisability of appointing a sole or presiding arbitra-
tor of a nationality other than those of the parties.” For arbitrations not seated in Singapore,
SIAC has confirmed that as a matter of practice it does not appointa sole arbitrator or presiding
arbitrator who has the nationality of either party (and will also consider the nationality of the
major shareholders of a party). The parties can agree to preclude (or allow) persons of a certain
nationality from acting as arbitrator.”>
In practice, arbitrators from an increasingly wide range of countries are appointed in SIAC 8.60
arbitrations. While Singaporeans continue to account for approximately 30 per cent of arbi-
tral appointments at SIAC, arbitrators appointed by SIAC in 2016 also hailed from Australia,
Canada, China, France, Germany, Greece, Hong Kong, India, Ireland, Italy, Malaysia, New
Zealand, the Philippines, South Africa, South Korea, Switzerland, Taiwan, the United Kingdom,
the USA, and Vietnam.’6

drawing the chairman's attention to the litigation over which he was presiding. At the hearing of the recusal
application, the judge repeatedly and aggressively questioned counsel for British Airways regarding what had
happened to his luggage despite being irrelevant to the commercial dispute before him.
70 Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd and another (1988) 1 SLR(R) 483 at [87].
Similarly, two ICC arbitrators were removed by the ICC Court after an acrimonious conflict between them
ing the conduct of the arbitration. Derains and Schwartz, JCC Rules ofArbitration (n 7) 196.
”\ Turner (East Asia) v Builders Federal (Hong Kong) (n 70) at [65].
72 SCC Rules (2010), Art 13(5); ICC Rules (2017), Art 13(5); HKIAC Rules (2013), Art 11.2; LCIA Rules
(2014), Art 6.1; KCAB Rules (2016), Art 12.4.
73 In contrast, the SIAC Investment Arbitration Rules (2017), Rule 5.7 grcontdons ‘Where the Parties are of
different nationalities, the Court shall appoint a sole arbitrator or a presiding arbitrator of a different national-
eee unless the Parties have otherwise agreed or unless the Court otherwise determines it to be
appropriare hearingregard to the circumstances of the case.’
4 IAA, s 3(1), 1985
STM AAAG bocalion doeitis
75 IAA, s3(1), 1985 UNCITR Model Law,ALArt 11(1).
76 SIAC, ‘2016 SIAC Annual Report’ (2016) 16. In previous years, SIAC has also apposane: axblecors
from Brunei, Indonesia, Japan, the Netherlands, Saudi Arabia, SriLanka, andthe United Arab Emirates: SIAC,
‘2013 Annual Report’ (2013) 10, ‘2014 Annual Report’ (2014) 12, and‘2015 Annual Report’ (2015) 16.
145
 Formation and Challenge of The Arbitral Tribunal
EEE

c. Justifiable doubts
8.61 It is not necessary to show that an arbitrator is actually dependent on a party
or partial in relation to a party or an issue’’ in dispute in order to have him or her
removed. It is enough if there are ‘justifiable doubts’ as to his or her independence or
impartiality.”
8.62 The SIAC Code of Ethics for an Arbitrator (2015) provides useful guidance on the circum-
stances which might give rise to justifiable doubts about an arbitrator's independence. Paragraph
3.2 states:
Any close personal relationship or current direct or indirect business relationship between an arbi-
trator and a party, or any representative of a party, or with a person who is known to be a poten-
tially important witness, will normally give rise to justifiable doubts as to a prospective arbitrator's
impartiality or independence. Past business relationships will only give rise to justifiable doubts if
they are of such magnitude or nature as to be likely to affect a prospective arbitrator's judgment.
He should decline to accept an appointment in such circumstances unless the parties agree in
writing that he may proceed.”®

8.63 Whether there are justifiable doubts is determined from the perspective of a reasonable per-
son. The subjective view of a complaining party (or the impugned arbitrator for that matter) is
irrelevant. The Singapore courts have adopted the following test, first put forward in England,
for determining when an arbitrator should be removed for bias: “Would a reasonable and fair-
minded person sitting in court and knowing all the relevant facts have a reasonable suspicion
that a fair trial for the applicant was not possible?’®°
8.64 The test espoused by the Singapore High Court is consistent with that subsequently adopted in
the 2014 IBA Guidelines on Conflicts of Interest in International Arbitration (IBA Guidelines
(2014)):
Doubts are justifiable if a reasonable third person, having knowledge of the relevant facts and
circumstances, would reach the conclusion that there is a likelihood that the arbitrator may be
influenced by factors other than the merits of the case as presented by the parties in reaching his
or her decision.®!

77 For some recent decisions on so-called issue conflict, see Saint-Gobain Performance Plastics Europe v
Bolivarian Republic of Venezuela (ICSID Case No ARB/ 12/13) Decision on Claimant's Proposal to Disqualify
Mr Gabriel Bottini from the Tribunal under Art 57 of the International Convention on the Settlement of
Investment Disputes between States and National of Other States 1966 (ICSID Convention), 27 February
2013; Blue Bank Int'l and Trust (Barbados) Ltd v Bolivarian Republic of
Venezuela (ICSID Case No. ARB/12/20)
Decision on the Parties’ Proposals to Disqualify a Majority of the Tribunal, 12 November 2013; and Caratube
International Oil Company LLP & Mr Devincci Salah Hourani v Republic ofKazakhstan (1CSID Case No. ARB/
13/13) Decision on the Proposal for Disqualification of Mr Bruno Boesch, 20 March 2014.
78 TAA, s 3(1), 1985 UNCITRAL Model Law 1985, Art 12(2); SIAC Rules (2016), Rules 13.4 and 14.1.
79 While the SIAC Code of Ethics for an Arbitrator (2015) para 3.2 refers to a prospective arbitrator's
‘impartiality or independence’, the (non-exhaustive) illustrations set out therein only cover relationships and
thus, strictly speaking, only address the question of whether an arbitrator is independent.
80 Turner (East Asia) v Builders Federal (Hong Kong) (n 70) at [72], following the test first put forward in Rv
Liverpool City Justices, ex Topping [1983] 1WLR 119 (English High Court). See also Porter v Magill [2002] AC
357 at [103]; Anwar Siraj and anor v Ting Kang Chung and anor (2003) 2 SLR(R) 287 (Singapore High Court)
para 41; and Koh Bros Building and Civil Engineering Contractor Pte Ltd v Scotts Development (Saraca) Pte Ltd
[2002] 2 SLR(R) 1063 (Singapore High Court) para 34.
81 ae Guidelines on Conflicts of Interest in International Arbitration 2014 (IBA Guidelines), Part I,
para 2(c).

146
 E. Rule 13—Qualifications of Arbitrators

This is not the place for an exhaustive analysis of the circumstances that could give rise to 8.65
justifiable doubts about whether an arbitrator is independent and impartial. Other authors
have done so.® The issue is also comprehensively addressed in the IBA Guidelines (2014),
which represent the collective view of aWorking Group of46 experienced practitioners and
command widespread (although not universal) support.®3
The IBA Guidelines (2014) identify three categories of potential conflicts of interest. Each 8.66
category is denoted by a traffic-light colour. The Red List, which in theory* effec tively orders
the appointment of a candidate to stop, is divided into (a) the Non-Waivable Red List, which
covers situations which automatically disqualify arbitrators from accepting or continuing an
appointment (eg the arbitrator has a significant financial interest in one of the parties or the
outcome of the case); and (b) the Waivable Red List, which covers situations which must
be disclosed by the arbitrator (eg the arbitrator has given legal advice or provided an expert
opinion on the dispute to a party or an affiliate of one of the parties), and which prevent the
person from proceeding unless the parties agree otherwise.
The Orange List, which requires the appointment to wait, covers situations which may give 8.67
rise to justifiable doubts as to the arbitrator’s impartiality or independence (eg the arbitra-
tor’s law firm acted for one of the parties or an affiliate of one of the parties in an unrelated
matter within the last three years without the arbitrator's involvement). An arbitrator must
disclose such a situation. If the parties do not object, the parties are taken to have accepted
the appointment.
The Green List, which allows an appointment to proceed, covers situations which in the eyes 8.68
of the Working Group do not create a conflict of interest and need not be disclosed (eg the
arbitrator is a member of the same professional association or social organization as another
arbitrator on the tribunal or counsel to one of the parties).
Justifiable doubts about an arbitrator may arise at the time of acandidate’s proposed appoint- 8.69
ment or subsequently because of an arbitrator’s conduct during the course of an arbitration
(see Rule 15.1).

82 eg N Blackaby, C Partasides et al, Redfern and Hunter on International Arbitration (6th edn, OUP
2015) paras 4.75—4.142; Born, International Commercial Arbitration (n 63) 1759-912; Gaillard and Savage,
Fouchard, Gaillard, Goldman on International Commercial Arbitration (n 63) paras 1028-52; L Craig, W Park,
andJ Paulsson, /nternational Chamber of Commerce Arbitration (3rd edn, Oceana 2000) paras 13.04—13.05;
and G Nicholas and C Partasides, ‘LCIA Court Decisions to Arbitrators: A Proposal to Publish’ (2007) 23(1)
Arb Intl 1.
83 The ICC, SCC, WIPO, and ICDR have confirmed that they take the IBA Guidelines into account, or
apply similar standards, when determining challenges to arbitrators: Nicholas and Partasides, ‘LCIA Court
Decisions to Arbitrators’ (n 82) 2. SIAC similarly takes the IBA Guidelines into account when determining

8 The English High Court has derived assistance from the IBA Guidelines in some cases (eg Sierra Fishing
and others v Farran and others (2015) EWHC 140 Comm and Cofely Limited v Anthony Bingham
and Knowles Limited 2016] EWHC 240 (Comm)), while expressing scepticism in others. In W Limited vM
SDN BHD [2016] EWHC 422 (Comm), the High Court rejected a challenge to an arbitrator even though
the challenge was based on a scenario that fell ‘squarely within’ para. 1.4 ofthe Non-Waiv List ofthe
Redable
IBA Guidelines (ie the arbitrator's firm, but not him personally, regularly advised an affiliate of a party). The
High Court considered that theparties should beable towaive a disclosure of such circumstances, andthat the
arbitrator's inadvertent failure to disclose such circumstances should not automatically disqualify him. Justice
Knowles concluded that the IBA Guidelines are just that—guidelines. They are not binding. The test ultimately

147
 Formation and Challenge of The Arbitral Tribunal

2. Rule 13.2

In appointing an arbitrator under these Rules, the President shall have due regard to any quali-
fications required of the arbitrator by the agreement of the parties and to such considerations
that are relevant to the impartiality or independence of the arbitrator.

a. Factors taken into account by the SIAC President when making an appointment
8.70 Whereas Rule 13.1 is an instruction to arbitrators, Rule 13.2 requires the SIAC President to
respect the same rule regarding independence and impartiality when appointing an arbitrator.
8.71 The SIAC President shall also give due regard to any qualifications of the arbitrator required
by the parties, such as legal expertise in a certain area, language skills,®° professional qualifica-
tions, and even religious afhliation.®

3. Rule 13.3

The President shall also consider whether the arbitrator has sufficient availability to deter-
mine the case in a prompt and efficient manner that is appropriate given the nature of the
arbitration.
8.72 The SIAC President should only appoint an arbitrator who has sufficient availability to
conduct the arbitration promptly and efficiently. While SLAC does not impose any spe-
cific targets within which an arbitration must be concluded (unless it is an expedited case
under Rule 5), each arbitrator is required to confirm before appointment that ‘he is able
to give to the arbitration the time and attention which the parties are reasonably entitled
to expect’ .8”
8.73 The time within which a matter should be concluded will depend on the circumstances of
the case. Relatively straightforward disputes may be capable of being resolved within a mat-
ter of months; expedited cases must be determined within six months; and more complex
cases may require intermittent capacity over a one to two-year period.

4. Rule 13.4
A nominated arbitrator shall disclose to the parties and to the Registrar any circumstances that
may give rise to justifiable doubts as to his impartiality or independence as soon as reasonably
practicable and in any event before his appointment.
a. An arbitrator's duty ofdisclosure
8.74 A prospective arbitrator should refuse a nomination if uncertain that he or she will be inde-
pendent and impartial. But if they are certain of being independent and impartial, the next
step is to disclose any circumstances that a reasonable third party with knowledge of the facts

eeee Te ele Ya
is whether “The fair minded and informed observer, having considered the facts, would ... conclude
that there
was a real possibility that [the arbitrator] was biased or lacked independence or impartiality.’
8 SIAC Code of Ethics for an Arbitrator (2015) para 1.1, provides that a ‘prospective arbitrator shall
accept
an appointment only ifhe ... has an adequate knowledge of the language of the arbitration’.
%© In Jivraj v Hashwani [2011] UKSC 40 (English Supreme Court), a majority of the English Suprem
Court e
enforced an arbitration agreement requiring the arbitrators to be members of the Ismaili commun
ity.
Lord Clarke at para 70 stated: “The question is whether, in all of the circumstances the
provisi
arbitrators should be respected members of the Ismaili community was legitimate and justifie on that all the
d. In my opinion
it was.’
8” SIAC Code of Ethics for an Arbitrator (2015) para 1.1.

148
 E. Rule 13—Qualifications of Arbitrators

‘may consider gives rise to justifiable doubts as to his or her impartiality or independence. In
that sense, ‘may’ is the key word in Rule 13.4.8
The standard letter sent to prospective arbitrators by the SLAC Secretariat requests the arbi- 8.75
trator to conduct a ‘Conflict of Interest Audit’. The arbitrator must make reasonable enquir-
ies as to whether there are any circumstances that require disclosure.®? Paragraph 2.2 of the
SIAC Code ofEthics for an Arbitrator (2015) requires a prospective arbitrator:

... to disclose to the Registrar and any party who approaches him for a possible appointment:
(a) any past or present close personal relationship or business relationship, whether direct
or indirect, with any party to the dispute, or any representative of a party, or any person
known to be a potentially important witness in the arbitration; and
(b) the extent of any prior knowledge he may have of the dispute.

The IBA Guidelines (2014) also provide guidance on the matters that a prospective arbitra- 8.76
tor should disclose prior to accepting an appointment.
Any doubt as to whether something should be disclosed is best resolved in favour of disclos- 8.77
ure.*' A failure to disclose relevant facts could by itself constitute grounds for challenge even
though the facts, if disclosed in a timely fashion, would not have established bias.%
A failure to disclose relevant circumstances could even lead to actions (albeit usually mis- 8.78
conceived) against the institution administering the arbitration® or criminal proceedings
against the arbitrator in question.
What happens following the disclosure of circumstances that may give rise to justifiable 8.79
doubts as to an arbitrator's independence or impartiality? The parties may agree with the
prospective arbitrator that the circumstances disclosed are insufficient for disqualification.

88 The word ‘may is also used in the SCC Arbitration Rules (2010), Art 14.2. Similarly, ICC Rules (2017),
Art 1 1(2) requires a prospective arbitrator to disclose facts or circumstances which ‘might’ be of such nature as to
call into question the arbitrator's independence. In contrast, the HKIAC Administered Arbitration Rules 2013
(HKIAC Rules (2013)), Art 11.4, the UNCITRAL Rules on Arbitration 1976 (as revised in 2010) (UNCITRAL
Arbitration Rules (2010)), Art 11, CIETAC Rules (2015), Art 31.1, ACICA Rules (2016), Art 16.3, and the
LCIA Rules (2014), Arts 5.4 and 5.5 require a prospective arbitrator to disclose circumstances that are ‘likely’
to give rise to justifiable doubts as to his or her impartiality or independence.
IBA Guidelines (2014), Part I, para 7(c). See also SA J&P Avax SA & P v Société Tecnimon SPA (2009)
Revuede l’Arbitrage 186 (French Court of Appeal), where the Cour d appel de Paris annulled an award due to the
’ failure of the presiding arbitrator to disclose that his law firm had recently acted for one of the parties; and W
Limited v M SDN BHD [2016] EWHC 422 (Comm) where the English High Court found that an arbitrator
had made reasonable enquires, even though those enquiries failed to reveal a matter which should have been
disclosed to the parties.
% See paras [8.64-8.69].
% IBA Guidelines (2014), Part I, para 3(d).
2 Craig, Park, and Paulsson, /nternational Chamber of Commerce Arbitration (n 82) para 13.04(ii).
93 RSM Production Corp v The World Bank Group et al, DC District Court Case No 00783, Plaintiffs Verified
Complaint, 29 May 2013 (United States). (-
94 An arbitrator, Pierre Estoup, was arrested and subsequently charged with ‘organised fraud’ in connection
with hisconduct in an ICC arbitration between Bernard Tapie and Consortium de Réalisation. MrEstoup had
failed todisclose his alleged close ties to Mr Tapie and his counsel. Mr Tapie’s counsel had selected Mr Estoup as
an arbitratorin three earlier cases and a police raid of Mr Estoup’s home found a book dedicated to MrEstoup
by Mr Tapiein1998 inwhich Mr Tapie expressed his ‘infinite gratitude’ toMr Estoup. Atthe time ofwriting,
a criminal inquiry had been completed and itremained to beseen whether charges would be pursued against
eee trnpauk
ina atlpioa
of utocey
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forapproving a payment ctS400
peysar millon totM Mr Tp in seat
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‘Affaire Tapie: del’arbitre Pierre Estoup’, 28 May 2013,
vie éme Le Figaro,

149
 Formation and Challenge of The Arbitral Tribunal
7" ee eee
that
Alternatively, the parties may consider that the disclosed circumstances (or other facts
or
have otherwise become known) do give rise to justifiable doubts as to the independence
impartiality of the arbitrator and thus the arbitrator should not be appointed.% If only one
party thinks there are justifiable doubts as to the independence or impartiality of an arbitra-
tor, that party can file a Notice of Challenge under Rule 14.1.

5. Rule 13.5

An arbitrator shall immediately disclose to the parties, to the other arbitrators and to the
Registrar any circumstances that may give rise to justifiable doubts as to his impartiality or
independence that may be discovered or arise during the arbitration. :

a. An arbitrator's continuing duty ofdisclosure

8.80 An arbitrator has a continuing obligation throughout the arbitration to disclose any circum-
stance that may give rise to justifiable doubts as to his or her independence or impartiality.
8.81 If a party becomes aware during the arbitration of circumstances that may give rise to justi-
fable doubts about an arbitrator's independence and impartiality, it must bring a challenge
within 14 days of becoming aware of such circumstances (Rule 15.1).

6. Rule 13.6

No party or person acting on behalf of a party shall have any ex parte communication relating
to the case with any arbitrator or with any candidate for appointment as party-nominated
arbitrator, except to advise the candidate of the general nature of the controversy and of the
anticipated proceedings; to discuss the candidate’s qualifications, availability or independence
in relation to the parties; or to discuss the suitability of candidates for selection as the presiding
arbitrator where the parties or party-nominated arbitrators are to participate in that selection.
No party or person acting on behalf of a party shall have any ex parte communication relating
to the case with any candidate for presiding arbitrator.
a. Communications with potential arbitrators
8.82 Rule 13.6 addresses a delicate area. It is common for parties to confer with potential arbi-
trator candidates prior to making a nomination in order to ascertain their suitability. Such
communications must be restrained so as not to compromise an arbitrators independence
or impartiality should he or she be subsequently appointed.
8.83 Paragraph 4.1 of the SIAC Code of Ethics for an Arbitrator (2015) provides that in such
circumstances an arbitrator ‘may only enquire as to the general nature of the dispute, the
names of the parties and the expected time period required for the arbitration’. The potential
arbitrator should not give advice or express views of the case during the meeting, which as a
general rule should last no longer than 30 minutes.

available at <http://www.lefigaro.fr/actualite-france/2013/05/28/01016-20130528ART FIG00429-affaire-

tapie-la-deuxieme-vie-du-magistrat-qui-a-arbitre-le-conflit.php> (accessed 13 October 2016); ‘Arbitrage
Tapie: nouvelle mise en examen pour Pierre Estoup’, 5November 2013, L'OBS, available at <http://tempsreel.
nouvelobs.com/societe/20131105.AFP1153/arbitrage-tapie-nouvelle-mise-en-examen-pour-pierre-estoup.
html> (accessed 13 October 2016); ‘Affaire Tapie: Les Juges d’Instruction Ont Fini Leur Enquéte’, 27 June
2016, France Soir, available at <http://www.francesoir.fr/politique-france/affaire-tapie-les-juges-dinstruction-
ont-fini-leur-enquete> (accessed 13 October 2016).
9 SIAC Rules (2016), Rules 15.5 and 16.1.
% Craig, Park, and Paulsson, /nternational Chamber of Commerce Arbitration (n 82) para 13.03.

150
 E Rule 1 4—Challenge ofArbitrators

Rule 13.6 provides that a party may discuss with a candidate the general nature of
the 8.84
controversy. The ‘anticipated proceedings’ may also be addressed, including the expecte
d
timetable and the existence ofpreliminary issues. A party or its representatives may also dis-
cuss with a candidate his or her qualifications and whether there are any conflicts of interest.
In cases where there is to be a three-member tribunal, parties will also often want to know
whether a candidate is willing to consult with the nominating party or its representatives in
relation to candidates for the role of presiding arbitrator.
Once appointed, there should be no further ex parte communications witha party-nominated 8.85
arbitrator.
No ex parte communications are allowed at any time with the presiding arbitrator.9” 8.86

F Rule 14—Challenge of Arbitrators

Rules 14 to 18 regulate the challenge and replacement of arbitrators. In summary, an arbitra- 8.87
tor may voluntarily resign (Rule 15.5), may be removed through an agreement of the parties
(Rules 15.5 and 16.1), may be ordered to vacate his or her position by the SIAC Court (Rule
16.2), or may be physically or legally unable to continue in office (Rule 17.2). The grounds
for a party challenge to an arbitrator include justifiable doubts as to his or her independence
or impartiality (Rule 14.1), a lack of agreed qualifications (Rule 14.1), and a failure to fulfil
his or her functions under the SIAC Rules (Rules 17.2 and 17.3). The SIAC Registrar may
suspend the arbitration during the course of a challenge (Rule 15.4). Any hearings held prior
to the replacement of an arbitrator may need to be repeated (Rule 18).

1. Rule 14.1

Any arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to
the arbitrator's impartiality or independence or if the arbitrator does not possess any requisite
qualification on which the parties have agreed.
a. Standards for challenging an arbitrator
As explained in paragraphs [8.61—8.69], a party need not establish actual bias in order to 8.88
have an arbitrator removed. It is enough if there are justifiable doubts as to whether the arbi-
trator is independent and impartial. An arbitrator may also be challenged for not possessing
any agreed qualifications, such as specified legal, technical, or language skills.
2. Rule 14.2

A party may challenge the arbitrator nominated by it only for reasons of which it becomes
aware after the appointment has been made.

97 One may wonder why such a rule is appropriate for the presiding arbitrator but not for party-nominated
PSI a ie iti obligations ofindependence and impartiality. Indeed, it has been suggested that
there should be no ex parte communications with any candidates for appointment and all arbitrators should
be chosen by an arbitral institution rather than the parties.JPaulsson, ‘Moral Hazard in International Dispute
Resolution’ (2010) 25 ICSID Review 339 (Inaugural Lecture as holder of Michael R Klein Distinguished
Scholar Chair, University ofMiami School ofLaw, 29April 2010). Professor JanPaulsson arguesat[349] that
‘unilateral appointments are inconsistent with the fundamental premise of arbitration: mutual confidence in
arbitrators’ (emphasis inthe original). Inany event, that is not the current position of SIAC nor of other leading
commercial arbitral institutions.

151
 Formation and Challenge of The Arbitral Tribunal

a. A challenge against a partys own nominee

8.89 A party can bring achallenge against its party-nominated arbitrator only for reasons of which
it became aware after the arbitrator's appointment. In addition, while not stated in the SIAC
Rules, SIAC will allow a party to withdraw its nomination for arbitrator prior to his or her
appointment ifin the time between the arbitrator’s nomination and appointment the nomi-
nating party determines that there are justifiable doubts as to the arbitrator's independence
and impartiality.

G. Rule 15—Notice of Challenge

8.90 Rule 15 sets out the procedure for challenging an arbitrator after his or her appointment.
Again, while not explicitly addressed in the SIAC Rules, a party may also challenge an arbi-
trator informally prior to the arbitrator's appointment. A study of challenges made in ICC
arbitrations, for instance, shows that a challenge is more likely to be successful if made before
an arbitrator has been formally appointed.®
8.91 An informal challenge can be made by a party commenting adversely on an arbitrator's
nomination based on the arbitrator’s curriculum vitae or any disclosures that the arbi-
trator has made under Rule 13.4, both of which the SIAC Secretariat will send to the
parties before the arbitrator’s appointment. In addition, a party may base an informal
challenge on any other facts or circumstances in relation to the arbitrator of which the
party is aware.

. Rule 15.1
p_

A party that intends to challenge an arbitrator shall file a notice of challenge with the Registrar
in accordance with the requirements of Rule 15.2 within 14 days after receipt of the notice
of appointment of the arbitrator who is being challenged or within 14 days after the circum-
stances specified in Rule 14.1 or 14.2 became known or should have reasonably been known
to that party.
a. Time limits for bringingachallenge
8.92 Rule 15.1 addresses the time within which a challenge against an arbitrator may be brought
in relation to an arbitrator nominated by the other side,® the presiding arbitrator, or a sole
arbitrator. For all three, any challenge to the arbitrator must be filed within 14 days after
receipt of the notice of appointment of the arbitrator who is being challenged.'
8.93 A challenge may also be filed during the course of an arbitration on the basis of new facts.
Such a challenge must be filed within 14 days of when the new facts were known or should

%8 Craig, Park, and Paulsson, /nternational Chamber of Commerce Arbitration (n 82) para 13.01.
% ‘The first part of Rule 15.1 (ie a challenge after a notice of appointment) does not apply to challenges
against a party's own party-nominated arbitrator. As already explained, Rule 14.2 only allows a party to chal-
lenge its party-nominated arbitrator after his or her appointment on the basis of new facts.
100 Under the 2013 SIAC Rules, a (marginally) different time limit applies for a challenge against these three
categories of arbitrator for a lack of agreed qualifications. Such a challenge must be brought pursuant to the
oa 1d2013 cas aanlvoeae 14 days after receipt by a party of the notification of the ‘nomination’ of
e arbitrator (as opposed to the arbitrator's ‘appointment’, which is when time begi
under 2013 SIAC Rule 12.1 and 2016 SIAC Rule15.1), scieeslinthataroaet,

152
 G. Rule 15—Notice of Challenge

reasonably have been known by a party. Thus, a party cannot pursue a challenge based on
‘new’ facts which a party should have known at the time of an arbitrator's appointment if it
had undertaken reasonable enquiries. Parties are expected to do a reasonable amount of due
diligence on prospective arbitrators prior to their appointment.
b. Tactical considerations
Rule 15 governs the procedures for bringing a challenge. Whether a party actually files a 8.94
challenge is a question of tactics. The potential benefits ofachallenge need to be weighed
against the costs and delays occasioned by the challenge process, including the risks of pro-
ceeding before a ‘surviving’ arbitrator or a less desirable replacement arbitrator. A party may
also make the tactical decision to leave an obviously partial arbitrator in office in the expect-
ation that his or her views are likely to be heavily discounted, or ignored, by the remaining
members of the tribunal.

2. Rule 15.2

The notice of challenge shall state the reasons for the challenge. The date of receipt of the
notice of challenge by the Registrar shall be deemed to be the date the notice of challenge is
filed. The party challenging an arbitrator shall, at the same time as it files a notice of challenge
with the Registrar, send the notice of challenge to the other party, the arbitrator who is being
challenged and the other members of the Tribunal (or if the Tribunal has not yet been consti-
tuted, any appointed arbitrator), and shall notify the Registrar that it has done so, specifying
the mode of service employed and the date of service.
a. Procedural requirements
A notice challenging an arbitrator's appointment shall be filed with the Registrar and served 8.95
simultaneously on the other party and any other already-appointed (or nominated) mem-
bers of the tribunal. Reasons must be provided in support of the challenge.
The date of receipt of the notice of challenge by the Registrar shall be deemed to be the date 8.96
the notice of challenge is filed. Thus, a party challenging an arbitrator must ensure that its
notice of challenge is received by the Registrar within 14 days of that party receiving the
notice of appointment of the arbitrator or its becoming aware of the facts which support the
challenge. '®

3. Rule 15.3
The party making the challenge shall pay the requisite challenge fee under these Rules in
accordance with the applicable Schedule of Fees. If the party making the challenge fails to pay
the challenge fee within the time limit set by the Registrar, the challenge shall be considered
as withdrawn.
Rule 15.3 was added to the SIAC Rules in 2016 to require a party challenging an arbi- 8.97
trator to pay a ‘challenge fee’ (S$8,000 for overseas parties and $$8,560 for Singaporean
parties after the application of GST)." If the fee is not paid before the deadline set by the
Registrar, the challenge shall be considered as withdrawn. (It remains to be seen whether in

101 Craig, Park, and Paulsson, /nternational Chamber of Commerce Arbitration (n 82) para 13.10.
, 15.1.
102 SIAC Rules (2016)Rule
103 STAC Schedule of Fees (1 August 2016).
153
 Formation and Challenge of The Arbitral Tribunal
eee
as by
such circumstances the challenging party would be able to reintroduce the challenge
that point more than 14 days might have passed since the notice of appointment ofthe arbi-
trator or the facts supporting the challenge had come to light.)
8.98 The challenge fee covers SLAC’s administration costs of determining the challenge, and acts
as a deterrent against parties making frivolous challenges to arbitrators.

4, Rule 15.4

After receipt of a notice of challenge under Rule 15.2, the Registrar may order a suspension of
the arbitral proceedings until the challenge is resolved. Unless the Registrar orders the suspen-
sion of the arbitral proceedings pursuant to this Rule 15.4, the challenged arbitrator shall be
entitled to continue to participate in the arbitration pending the determination of the chal-
lenge by the Court in accordance with Rule 16.

8.99 The Registrar may order a suspension of the proceedings until the challenge is resolved.
In practice, the Registrar has on occasion ordered the suspension of proceedings pending
an arbitrator challenge and in other instances has allowed the arbitration to continue. The
Registrar's decision will depend on the specific facts and circumstances of each case. If the
Registrar does not suspend the arbitration pending the challenge, the challenged arbitrator
may continue to participate in the proceedings while awaiting the SIAC Court's decision on
the challenge.
8.100 The Singapore courts are unlikely to intervene to suspend an arbitration pending an arbitra-
tor challenge.'™

5. Rule 15.5

When an arbitrator is challenged by a party, the other party may agree to the challenge and the
Court shall remove the arbitrator ifall parties agree to the challenge. The challenged arbitrator
may also voluntarily withdraw from office. In neither case does this imply acceptance of the
validity of the grounds for the challenge.
a. Voluntary withdrawal ofan arbitrator
8.101 Some arbitrators automatically stand down when challenged, particularly if the challenge
is brought early in the proceedings before they have invested time and effort in the matter.
They consider it better to do so than subject themselves and the parties to a potentially ardu-
ous challenge procedure. Others take the view that unworthy challenges should be resisted

104 In Mitsui Engineering and Shipbuilding Co Ltd v Easton Graham Rush and anor {2004] 2 SLR(R) 14
(Singapore High Court), the Singapore High Court held that it did not have the power to issue an injunction to
restrain a challenged arbitrator (who was named as one of the respondents in the court application together with
Mitsui’s opponent in the arbitration) from continuing with an arbitration. In that case, Mitsui challenged the
arbitrator on the grounds that he had issued an interim award in which he allegedly dealt with matters outside
the scope of the issues submitted for decision and had pre-judged issues which were to be dealt with at subse-
quent hearings. Pending the outcome of the challenge, Mitsui sought an interim injunction restraining the arbi-
trator from continuing with the arbitration. The Singapore High Court refused to grant the injunction, noting
that the 1985 UNCITRAL Model Law, Art 5 provides that no court shall intervene ‘except where so provided’
in the Model Law. The IAA has since been amended to allow the Singapore courts to issue an interim injunction
in relation to an arbitration (IAA, s 12A(2)). The LAA, s 12A(6), however, provides that the High Court shall
make such order ‘only ifor to the extent that the arbitral tribunal, and any arbitral or other institution or person
vested by the parties with power in that regard, has no power or is unable for the time being to act effectively’.

154
 G. Rule 15—WNotice of Challenge

on the basis that to do otherwise may encourage tactical challenges designed merely to obfus-
cate and delay arbitrations.
A decision by an arbitrator to resign should not be interpreted as his or her acceptance ofthe 8.102
grounds ofchallenge.
In Anwar Siraj v Teo Hee Lai Building Construction Pte Lid, the Singapore High Court held 8.103
that an arbitrator's acceptance of his or her appointment gives rise to a ‘trilateral contract’
between the arbitrator and the parties. Thus, an arbitrator is contractually obliged to com-
plete his or her mandate. Nonetheless, the High Court held that an arbitrator may resign
where he or she has ‘good and justifiable cause’ to do so.'%
The SIAC Rules do not require SIAC Court approval before a resignation will be effective.'% 8.104
It is enough for the arbitrator to resign by a letter to the parties (and SIAC).'°
b. Removal ofan arbitrator by agreement ofthe parties
The SLAC Court will remove an arbitrator from office if all parties agree to the challenge.
'°8 8.105
6. Rule 15.6

If an arbitrator is removed or withdraws from office in accordance with Rule 15.5, a substitute
arbitrator shall be appointed in accordance with the procedure applicable to the nomination
and appointment of the arbitrator being replaced. This procedure shall apply even if, during
the process of appointing the challenged arbitrator, a party failed to exercise its right to nom-
inate an arbitrator. The time limits applicable to the nomination and appointment of the sub-
stitute arbitrator shall commence from the date of receipt of the agreement of the other party
to the challenge or the challenged arbitrator’s withdrawal from office.
a. Procedure for the replacement ofan arbitrator challenged by a party
Rule 15.6 reflects the principle that all parties should be given the same opportunity to influ- 8.106
ence the constitution of the tribunal after an arbitrator has been replaced as each had in the
constitution of the original tribunal.
Thus, for instance, if a party-nominated arbitrator is removed from a three-person tribunal, 8.107
that party has the right under Rule 11.2 to nominate an alternative candidate within 14 days
of receipt of the agreement of the other party to the challenge or the challenged arbitrator's
voluntary withdrawal. This is so even if that party had failed to nominate an arbitrator at the
commencement of the arbitration.'°° Similarly, if a sole arbitrator is removed, both parties

105 [2014] 1 SLR 52 at [26~28]. In that case, the arbitrator was held at para 41 to have good and justifiable
cause to resign after he was subjected to aggressive, unwarranted, and scurrilous allegations by the plaintiffs.
106 In contrast, ICC Rules (2017), Art 15(1) requires approval of the ICC Court before a resignation will
be effective.
107 Anwar Siraj (n 80) at [43]. tas
108 Rule 15.5 is consistent with the 1985 UNCITRAL Model Law, Art 13(2), effective in Singapore pur-
suant to IAA, s 3(1) which provides: “Unless the challenged arbitrator withdraws from his office or the other
party agrees to thechallenge, the arbitral tribunal shall decide on the challenge.’ (Emphasis added.) Rule 15.5
is mirrored by LCIA Arbitration Rules (2014), Art 10.5: ‘If allother parties agree inwritingto the challenge
within 14 days ofreceipt of the written statement, the LCIA Court shall revoke that arbitrator's appointment
(without reasons).’ % ,
109 In contrast, the ICC Rules and the LCIA Rules grant the supervising institution a discretion as to
whether the original nominating process should befollowed (ICC Rules (2017), Art15(4); LCIA Rules (2014),
Art 11.1).
155
 Formation and Challenge of The Arbitral Tribunal

will have the opportunity to agree a replacement pursuant to Rule 10.1, failing which, the
SIAC President will choose someone on their behalf.

H. Rule 16—Decision on Challenge

8.108 The SIAC Court decides challenges against arbitrators pursuant to the procedures of Rule 16.

1. Rule 16.1

If, within seven days of receipt of the notice of challenge under Rule 15, the other party does
not agree to the challenge and the arbitrator who is being challenged does not withdraw vol-
untarily from office, the Court shall decide the challenge. The Court may request comments
on the challenge from the parties, the challenged arbitrator and the other members of the
Tribunal (or if the Tribunal has not yet been constituted, any appointed arbitrator), and set a
schedule for such comments to be made.
a. Challenges are decided by the SIAC Court
8.109 Rule 16.1 provides that the SIAC Court will decide a challenge against an arbitrator unless
the other party agrees or the challenged arbitrator withdraws within seven days of the notice
of challenge. In practice, challenges are determined by a three-person committee of the SIAC
Court selected by the SIAC President or Vice-President.''® The committee is not required to
seek the SIAC Court’s approval of its decision.
8.110 The other party, the challenged arbitrator and any other already-appointed (or nominated)
arbitrators may comment on the challenge, and are typically given a week to do so. A chal-
lenged arbitrator should be careful to ensure that his or her conduct after the filing of a chal-
lenge, including any comments submitted to SIAC, does not in itself raise justifiable doubts
regarding his or her impartiality. While an arbitrator is fully entitled to express his or her view
as to the merits of the challenge, he or she ‘must be careful not to appear to take sides, so as to
be subsequently unable to judge impartially the rival arguments in the case’.""'
2. Rule 16.2

If the Court accepts the challenge to an arbitrator, the Court shall remove the arbitrator, and
a substitute arbitrator shall be appointed in accordance with the procedure applicable to the
nomination and appointment of the arbitrator being replaced. The time limits applicable to
the nomination and appointment of the substitute arbitrator shall commence from the date
of the Registrar's notification to the parties of the decision by the Court.

"0 The 2010 SIAC Rules require challenges to be determined by a Committee of the Board. SIAC Rules
ae Rule 1.3(a) amends the definition of ‘Committee of the Board’ in the 2010 SIAC Rules to mean
ourt’.
''' In Sierra Fishing Company (n 84), the English High Court found that two aspects of the arbitrator's
conduct after the challenge had been made gave rise to justifiable doubts regarding his impartiality. First, the
arbitrator refused to postpone the publishing of his award pending the outcome of the challenge application to
the High Court, despite both parties expressly asking him to do so. Second, the content and tone of his com-
munications with the parties showed that he had become too ‘personally involved’ in the challenge and had
‘descended into the arena and taken up the battle on behalf of [the Defendants] such that there could no longer
be any guarantee of his necessary objectivity’. Similarly, in Cofely Limited (n 84), the English High Court found
the arbitrator's aggressive and dismissive demeanour towards a party's counsel to raise concerns of apparent bias.

156
 H. Rule 16—Decision on Challenge

4. Procedure for the replacement of an arbitrator removed by the SIAC Court

Rule 16.2 prescribes the same procedures for the replacement of an arbitrator removed by 8.111
the SLAC Court as those which are applicable under Rule 15.6 for an arbitrator who has
resigned or been removed on the agreement of the parties. While not stated expressly (unlike
Rule 15.6), Rule 16.2 is likely to be interpreted to mean that a party will be able to nominate
a replacement arbitrator even if it had failed to exercise its right to nominate an arbitrator
when the tribunal was first constituted.

3. Rule 16.3

If the Court rejects the challenge to an arbitrator, the challenged arbitrator shall continue with
the arbitration.

Rule 16.3 confirms that a challenged arbitrator should remain in office if the challenge is 8.112
rejected by the SIAC Court.

4. Rule 16.4

The Court's decision on any challenge to an arbitrator under this Rule 16 shall be reasoned,
unless otherwise agreed by the parties, and shall be issued to the parties by the Registrar. Any
such decision on any challenge by the Court shall be final and not subject to appeal.
a. Reasoned decision
Rule 16.4, which was introduced in 2016, formalises the existing practice by which the 8.113
SIAC Court, acting through the Secretariat, provides brief reasons for its decision on a
challenge to the parties and the tribunal. This is consistent with the movement in recent
times towards greater transparency in the determination of arbitrator challenges. The
LCIA, for instance, goes further and publishes its reasons in a redacted form.''? SIAC is
considering doing likewise, subject to confidentiality concerns and the needs of its stake-
holders, which would provide greater clarity to an area that remains opaque and overly
dependent on abstract guidelines. The publication of decisions on arbitrator challenges
would also be consistent with SIAC’s decision in 2012 to publish arbitral awards in a
redacted form.'"3

b. Rights ofappeal
Rule 16.5 provides that the SIAC Court's decision to accept or reject a challenge to an arbi- 8.114
trator is final and not subject to appeal (see also Rules 40.1 and 40.2).
For arbitrations seated in Singapore, however, the SIAC Court's decision on a challenge is 8.115
subject to review by the Singapore High Court. Art 13(1) of the 1985 UNCITRAL Model
Law" provides that the parties are free to agree on a procedure for challenging an arbitrator
(such as that contained in the SIAC Rules) ‘subject to the provisions of paragraph (3) of this
=

112 Nicholas and Partasides, ‘LCIA Court Decisions on Challenges to Arbitrators’ (n 82). The LCIA’s deci-
sions on challenges over the period 1997-2010 have been published in (2011) 27(3) Arb Intl 320-473. In
contrast, the ACICA Rules (2016), Art 48.2, the JCAA Commercial Arbitration Rules (2016), Rule 32, and the
Swiss Rules ofInternational Arbitration (2012), Art 11(3) provide that thesupervising institut make a
mayion
decision on a challenge without giving reasons.
113 For a discussionon the publication of SIAC awards, seeCh 14, paras [14.50—-14.54].
"4 Incorp ora
into Singapore law pursuant to IAA,
ted s3(1).

157
 Formation and Challenge of The Arbitral Tribunal

Article’. Art 13(3) of the Model Law, in turn, provides that a party which has unsuccessfully
challenged an arbitrator may within 30 days ofreceiving notice of the decision rejecting the
challenge, appeal to the Singapore High Court.''® This would appear to be a mandatory pro-
vision of the IAA and thus cannot be waived by adoption ofthe SIAC Rules. No appeal lies
against the decision of the High Court.

I. Rule 17—Replacement of an Arbitrator

. Rule 17.1
—_

Except as otherwise provided in these Rules, in the event of the death, resignation, withdrawal
or removal of an arbitrator during the course of the arbitral proceedings, a substitute arbitra-
tor shall be appointed in accordance with the procedure applicable to the nomination and
appointment of the arbitrator being replaced.
8.116 Whereas Rules 15.6 and 16.2 address the replacement of an arbitrator who was challenged
by a party, Rule 17.1 covers the replacement of an arbitrator who has died, resigned, or with-
drawn (whether or not that is the result of a challenge), or been removed by the SIAC Court
(whether as a result of a challenge or by the SIAC President pursuant to Rule 17.3). In such
circumstances, the replacement arbitrator shall be nominated and appointed using the same
procedure which was applicable to the arbitrator being replaced.
8.117 The words ‘Except as otherwise provided in these Rules’ were added to Rule 17.1 in 2016
presumably to cater for the new Rules 7 and 8, among other provisions. If a third party is
joined to an arbitration in accordance with Rule 7 or if multiple arbitrations are consolidated
under Rule 8 into a single arbitration, any replacement arbitrator should be appointed in
accordance with Rule 12 unless otherwise agreed by all parties.

2. Rule 17.2

In the event that an arbitrator refuses or fails to act or perform his functions in accordance with
the Rules or within prescribed time limits, or in the event of any de jure or defacto impossibility
by an arbitrator to act or perform his functions, the procedure for challenge and replacement
of an arbitrator provided in Rule 14 to Rule 16 and Rule 17.1 shall apply.
a. Challenge against an arbitrator for a failure to perform his or her functions
8.118 The parties’ ability to challenge an arbitrator is not limited to issues of bias or a lack of agreed
qualifications. A challenge may also be brought if an arbitrator refuses, fails, or is unable to
act or, more generally, is not meeting his or her obligations under the SIAC Rules or within
the prescribed time limits, An arbitrator may be removed for misconduct or if he or she is
perceived to be acting unfairly in contravention of Rules 19.1 and 41.2.1"
8.119 An arbitrator's inability to act may be legal (dejure) or factual (defacto). A legal impediment
would include a court injunction prohibiting an arbitrator from sitting. Alternatively, an
arbitrator may be physically unable to serve, for instance, due to ill health or, as famously

"5 The equivalent provision in the AA is s 15(4).

"16 Although it can be difficult to distinguish the duty to act fairly under Rules 19.1 and 41.2 and the duty
to be impartial, they are not identical standards.

158
 J. Rule 18—Repetition of Hearings

happened in the Himpurna and Patuha cases,""’ because the arbitrator is forcibly restrai
ned
by a party.

3. Rule 17.3

The President may, at his own initiative and in his discretion, remove an arbitrator who refuses
or fails to act or to perform his functions in accordance with the Rules or within prescribed
time limits, or in the event ofadejure or defacto impossibility of an arbitrator to act or per-
form his functions, or if the arbitrator does not conduct or participate in the arbitration with
due diligence and/or in a manner that ensures the fair, expeditious, economical and final reso-
lution of the dispute. The President shall consult the parties and the members of the Tribunal,
including the arbitrator to be removed (or if the Tribunal has not yet been constituted, any
appointed arbitrator) prior to the removal of an arbitrator under this Rule.
a. Removal ofan arbitrator by the SIAC President
The SIAC President may, of his own volition, after consulting with the parties and the tri- 8.120
bunal members, remove an arbitrator pursuant to Rule 17.3 for failure to perform his or her
functions in accordance with the SIAC Rules, within the prescribed time limits, with due
diligence or in a manner that ensures the fair, expeditious, economical and final resolution
of the dispute."
The SIAC President has not, at the time of writing, removed an arbitrator pursuant to 8.121
Rule 17.3.

J. Rule 18—Repetition of Hearings in the Event

of Replacement of an Arbitrator
1. Rule 18

If the sole or presiding arbitrator is replaced in accordance with the procedure in Rule 15 to
Rule 17, any hearings held previously shall be repeated unless otherwise agreed by the parties.
If any other arbitrator is replaced, any hearings held previously may be repeated at the discre-
tion of the Tribunal after consulting with the parties. If the Tribunal has issued an interim or
partial Award, any hearings related solely to that Award shall not be repeated, and the Award
shall remain in effect.
a. Repetition ofhearings
Once an arbitrator has been replaced, the question arises as to whether, and to what extent, 8.122
the tribunal should repeat any aspects of the proceedings.

"7 In Himpurna California Energy Ltd v Republic

ofIndonesia, Interim Award and Final Award, 26 September
1999 and 16 October 1999, 15 Mealey’s Intl Arb Rep A-1 (2000) and Patuha Power Ltd (Bermuda) v Republic
ofIndonesia, Interim Award and Final Award, 26 September 1999 and 16 October 1999, 15 Mealey’s Incl Arb
Rep B-1 (2000), a member of the tribunal, Professor Priyatna, was intercepted onhis wayto participating ina
hearing in The Hague by agents of the Indonesian government (which had appointed him) at Schiphol Airport
inAmsterdam. He was escorted back to Indonesia and thus unable to participate in the hearing. The tribunal,
chaired byProfessor Jan Paulsson, continued todischarge itsfunction intheabsence ofthedetained arbitrator.
118 The obligation ofthe tribunal to ensure the fair, expeditious, economical, and final resolution of the dis-
pute isdiscussed in detail in Ch9 inrelation to Rule 19.1.

159
 Formation and Challenge of The Arbitral Tribunal

8.123 If the sole or presiding arbitrator is replaced, the default position under the SIAC Rules is
that any previous hearings should be repeated unless the parties agree otherwise. The pri-
macy given to party autonomy in this regard is consistent with Singapore law.''? In contrast,
for arbitrations seated in Indonesia, all hearings previously held must be repeated in the
event the sole or presiding arbitrator is replaced.'°
8.124 Ifany other arbitrator is replaced, Rule 18 allows the tribunal to determine, after consulting
the parties, whether any hearings should be repeated. The parties’ right to be heard (by the
tribunal members who will ultimately determine the dispute) must be balanced against the
need to avoid unreasonable costs and delay.
8.125 Rule 18 provides that any interim or partial award rendered by a tribunal a member of which
was subsequently replaced shall remain in effect and any hearings related to such an award
shall not be repeated. This rule presumably does not apply to an award tainted by the very
impediments that led to the replacement of the arbitrator.
b. Truncated tribunals
8.126 The SIAC Rules do not specifically address the question of whether a truncated tribunal can
render an award. In contrast, Art 15(5) of the ICC Rules (2017) provides that ‘the [ICC]
Court may decide, when it considers it appropriate, that the remaining arbitrators shall con-
tinue the arbitration’ after an arbitrator has been removed or replaced."

SREEEESEEeeernaeees eo
"9 The IAA is silent on the procedures to follow upon the replacement of an arbitrator, th allowing the
issue to be decided by the parties through an agreement or through their choice of ae gree
For bia.
tions subject to the AA, s 18(1)(b) provides that ‘the parties are free to agree whether and
ifso to what extent the
previous proceedings should stand’ after an arbitrator ceases to hold office.
fo Law Concerning Arbitration and Dispute Resolution, Law No 30 of 1999 (Indonesia), Art 26(4).
"21 By way of further comparison, ICDR Rules (2014), Art 15(1) provides that the
parties may agree that a
substitute arbitrator not be appointed, LCIA Arbitration Rules (2014), Art 12.1 provides
that ‘where an arbi-
trator without good cause refuses or persistently fails to participate in the deliberations of an
Arbitral Tribunal,
the remaining arbitrators jointly may decide . . . to continue the arbitration (including the maki
notwithstanding the absence of that other arbitrator, subject to the written approval of the ngof any award)
LCIA Court’.

160
 9
THE CONDUCT OF PROCEEDINGS
(SIAC RULES 19 TO 26)

A. Rule 19—Conduct of the Proceedings 9.03 D. Rule 22—Language of Arbitration 9.83

1. Rule 19.1 9.04 1. Rule 22.1 9.83
2. Rule 19.2 9.16 2. Rule 22.2 9.88
,' we 19.3 9.18 E. Rule 23—Party Representatives 9.89
- Rule 19.4 9.24 1. Rule 23.1 9.89
2 st pe! 2. Rule 23.2 9.95
. ¢€ .
7 Rule 19.7 9.32 E Rule 24—Hearings 9.96
, 1. Rule 24.1 A
B. Rule 20—Submissions by the Parties 9.33 2. ati 14.2 ord
1. Rule 20.1 9.34 3. Rule 24.3 9.102
2. Rule 20,2 9.35 4. Rule 24.4 9,105
3. Rule 20.3 9.47
4. Rule 204 G. Rule 25—Witnesses 9.107
. Rule 20. sl 1, Rule 25.1 9.108
5 peg Sak ah lea 9.109
7. Rul 3. Rule 25.3 9.110
P e 20.7 9.64
8 Rule 208 9.65 4. Rule 25.4 9.116
9. Rule 20.9 9.67 5. Rule 25.5 9.120

C. Rule 21—Seat of the Arbitration 9.69 He i oe pn eapeence pe

1. Rule21.2
2
Rule 21.1 9.70
9.80
eng
2. Rule 26.2
aa
9.130
: 3. Rule 26.3 9.131

The SIAC Rules governing the conduct of proceedings in a SIAC arbitration are addressed 9.01
in this chapter. It begins with an enumeration of general principles (Rule 19) in part A, fol-
lowed by specific rules governing the parties’ written submissions (Rule 20) in part B; the
choice of seat (Rule 21) and language (Rule 22) in parts C and D, respectively; the parties’
representatives (Rule 23) in part E; the conduct of hearings (Rule 34) in part F; witness
evidence (Rule 25) in part G; and the use of tribunal-appointed experts (Rule 26) in part H.
Notably, while the SIAC Rules leave considerable scope for the parties to determine how 9.02
their arbitration should be conducted, the SIAC Rules (and in particular Rules 19.1, 20.1,
and 25.3) have been amended in recent years to make clear that the tribunal has full author-
ity to conduct the arbitration as it considers appropriate.

161
 Conduct ofProceedings (SIAC Rules 19 to 26)

A. Rule 19—Conduct of the Proceedings

9.03 Rule 19 establishes broad principles for the conduct of a SIAC arbitration. In particular,
an arbitration shall be conducted fairly, expeditiously, and economically, and lead to a final
determination of the dispute.

1. Rule 19.1

The Tribunal shall conduct the arbitration in such manner as it considers appropriate, after
consulting with the parties, to ensure the fair, expeditious, economical and final resolution of
the dispute.
a. The tribunal is responsible for the conduct ofthe arbitration
9.04 The opening words of Rule 19.1 make clear that the tribunal shall determine the appropri-
ate procedures for the arbitration, after consulting with the parties. Where the views of the
parties and the tribunal diverge, the tribunal has the final say as to how the proceedings will
be conducted.'
9.05 This represents a departure from the position under the 2007 SIAC Rules? and the 1985
UNCITRAL Model Law,? both of which expressly allow the parties to reach an agree-
ment on arbitral procedure that is binding on the tribunal. The 2010 SIAC Rules Drafting
Committee, which drafted Rule 16.1 of the 2010 SIAC Rules which largely mirrors Rule
19.1 of the 2016 SIAC Rules, made the change in recognition of the fact that a tribunal may
have good reasons for departing from an agreement of the parties on matters of procedure,
such as where the parties agree an excessively long timetable without good reason or agree to
a hearing schedule that is inconvenient for the tribunal members.
b. Fairness
9.06 A tribunal’s overriding obligation mandated by Rule 19.1 is to ensure that the arbitration
is conducted in a manner that is fair to all parties. Procedural fairness is often referred to as
‘natural justice’ in Singapore and other common law jurisdictions, while jurisdictions such
as the United States refer to the concept as ‘due process’.4
9.07 As explained in Chapter 2, a tribunal has a wide discretion under Singapore law to determine
what the duty to act fairly means in the circumstances of a given case.5 With that said:

SUE ENEREC Ee cea ee ENED EE EET WUC CEE eS OMe OST ee ee eT eee ee

' This principle is reinforced by SIAC Rules (2016), Rules 20.1 and 25.3.
2 SIAC Rules (2007), Rules 15.1 and 15.2. This version of the rules was based on the LCIA Rules (1998),
Art 14.1 which states that an agreement of the parties on procedural issues can override the view of the tribu-
nal. Thus, under the LCIA Rules (1998), the tribunal is required to follow any agreement of the parties on the
conduct of the arbitration or resign. P Turner and R Mohtashami, A Guide to the LCIA Arbitration Rules
(OUP
2009) paras 5.16—5.17.
3 1985 UNCITRAL Model Law, Art 19(1), which has the force of law in Singapore pursuant to LAA,
s 3(1),
requires a tribunal to respect the parties’ agreement as to how the proceedings should be conducted. That
is
not incompatible with the SIAC Rules (2016), Rule 19.1, however, as the parties, by agreeing to use the SIAC
Rules, exercise their right to reach an agreement on how the procedure shall be conducted under the
1985
UNCITRAL Model Law, Art 19(1).
“ G Kaufmann-Kohler, ‘Globalization of Arbitral Procedure’ (2003) 36 Van JTL 1313,
1321; RB Kovacs,
‘Efficiency in International Arbitration: an Economic Approach’ (2012) 23 ARIA 155, 167.
> Yee Hong
PteLtd v Electrical EngineerinPte
g Ltd (2005) 3 SLR(R) 512 para 26.

162
 A. Rule 19—Conduct of the Proceedings

The more surprising the decision and its reasoning—ie, the more inexplicable it is in the light
of the evidence and submissions—the more likely it is that the arbitral tribunal has crossed
from permissible discretionary decision-making into the forbidden territory of impermissible
breach of natural justice.®
Two general principles ofprocedural fairness stand out. First, each party has the rightto be 9.08
heard. Second, each party should be given equal treatment.” The Singapore Court of Appeal
in the case of Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd® described these
principles in the following terms:
Parties to arbitration have, in general, a right to be heard effectively on every issue that may
be relevant to the resolution of a dispute. The overriding concern ... is fairness. The best rule
of thumb to adopt is to treat the parties equally and allow them reasonable opportunities to
present their cases as well as to respond. An arbitrator should not base his decision(s) on mat-
ters not submitted or argued before him.°
In the same case, the Singapore Court of Appeal noted that fairness, when considered by a 9.09
reviewing court, is a ‘multi-dimensional concept’, requiring a weighing of the interests of
both parties; and that ‘it would also be unfair to the successful party if it were deprived of
the fruits of its labour as a result of a dissatisfied party raising a multitude of arid technical
challenges after an arbitral award has been made’.'°
The Court of Appeal noted that this ‘conception of fairness justifies a policy of minimal cur- 9.10
ial intervention’."' To that end, ‘an award should be read generously such that only meaning-
ful breaches of the rules of natural justice that have actually caused prejudice are ultimately
remedied’.'2
Following that approach, the Court of Appeal reversed the trial judge’s decision to set aside 9.11
an arbitral award on the grounds of a breach of a party’s right to be heard on an issue. The
Court held that the disputed issue was sufficiently ‘in play and fully alive throughout the
proceedings’ such that the arbitrator had the authority to decide the issue.'3
In contrast, in LW Infrastructure Pte Ltd v Lim Chin San Contractors Pte Ltd"* the Singapore 9.12
Court of Appeal affirmed the High Court’s decision to set aside an award. The arbitrator,

§ TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd [2013] 4 SLR 972 (Singapore High
Court 60.
ae 3; 1985 UNCITRAL Model Law, Art 18; AA, s 22. Equal treatment of the parties means, among
other things, that an arbitrator must be impartial and independent. See Chs 2 and 8.
8 Soh Beng Tee & Co Pte Ltd v Fairmount Development Pte Ltd{2007] 3 SLR(R) 86 (Singapore Court of Appeal).
9 Soh Beng Tee v Fairmount Development (n 8) para 65(a).
'0 Soh Beng Tee v Fairmount Development (n 8) para 65(b).
"| Soh Beng Tee v Fairmount Development (n 8) para 65(c). m
'2 Soh Beng Tee v Fairmount Development (n 8) at [65(f)]; IAA, s 24(b); AA, s 48(1)(a)(vii).
"3 Soh Beng Tee v Fairmount Development (n 8) at [67]. Similarly, inAQU v AQV[2015] SGHC 26 at [18],
the Singapore High Court held that ‘it is clear that the principles of natural justice are not breached just because
an arbitrator comes to a conclusion that it is not argued by either party as long as that conclusion reasonably
flows from the parties’ arguments’. In any event, the High Court concluded in that case that the arbitrator had
in fact reached a conclusion argued by a party, at [19-21]. In contrast, in JVL Agro Industries Ltd v Agitrade
International Pte Ltd [2016] SGHC 126, the Singapore High Court set aside an arbitral award because the tri-
bunal had based its decision on an issue which neither party had raised and the tribunal had not directed the
claimant toaddress (though the tribunal raised theissue briefly inclosing oral submissions at theevidentiary
hearing). The High Court found that this deprived the claimant ofa reasonable opportunity topresent itscase.
14 LW InfrastructurePte Ltd v Lim Chan San Contra Pte Ltd and anor {2013] 1 SLR 125 (Singapore
ctors
Court ofAppeal) paras 75-76.
163
 Conduct ofProceedings (SIAC Rules 19 to 26)
E
DT OOOO E anne

who had 60 days to issue an additional award, rendered the award within only three days
of receiving a party’s request for pre-award interest, and without giving the other party the
opportunity to respond."°
c. Expeditious and economical
9.13 Although arbitration can be faster and cheaper than other forms of international dispute
resolution, users of international arbitration, particularly claimants, are understandably
eager to minimize the delays and costs involved in the process.'* With those concerns in
mind, Rule 19.1, along with Rule 41.2, instructs the tribunal to resolve the dispute exped-
itiously and economically. This is not merely an ideal objective for the tribunal to, strive
towards, but an obligation which the tribunal is required under Singapore law and the SIAC
Rules to achieve.'”
9.14 Accordingly, a party does not have an unlimited right to be heard; just a reasonable one. The
tribunal is entitled to weigh a party’s right to present its case as it sees fit against competing
considerations suchas the injunction in Rule 19.1 requiring the tribunal to resolve the dispute
expeditiously and economically.'® The SIAC Rules are reinforced in that regard by the SIAC
Code of Ethics for an Arbitrator (2015), which requires that an arbitrator shall only accept
an appointment when he or she has the capacity to give the arbitration the time and attention
that the parties reasonably expect.'? The SIAC President must also take into consideration
‘whether the arbitrator has sufficient availability to determine the case in a prompt and efh-
cient manner appropriate to the nature of the arbitration’ when making an appointment.”

'S Similarly, in CRW Joint Operation v PT Perusahaan Gas Negara (Persero) TBK(2011]4SLR305 (Singapore
Court of Appeal) paras 92-96 and 100, the Singapore Court of Appeal set aside an award for a breach of the
rules of natural justice because, in part, the tribunal issued a final award on the merits after what should have
been merely a preliminary hearing, thereby depriving one of the parties of the right to be heard on an issue.
The Singapore High Court also set aside an award, and removed the arbitrator, in Koh Bros Building & Civil
Engineering Contractor Pte Ltd v Scotts Development (Saraca) Pte Ltd [2002] 2 SLR(R) 1063 (Singapore High
Court) paras 44-47 on the basis of a breach of the rules of natural justice because the arbitrator ruled on the
merits of an application for interim relief when he was supposed to rule on, and at least one party had only made
submissions on the issue of, whether to ear the application for interim relief. R Merkin and JHjalmarsson,
Singapore Arbitration Legislation: Annotated (Informa 2009) 63-65, provides further illustrations of breaches of
the rules of natural justice under Singapore and English law.
'© For a discussion of the costs of arbitration, see Ch 15, part A.
7 ADG v ADI [2014] 3 SLR 481 at [112].
"8 Triulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2015] 1 SLR 114 at [136, 151-152]: ‘But the right to
be heard too is not unqualified: it is subject to the standard of reasonableness.’ In that case, the Singapore High
Court found that the tribunal had exercised its case management powers and not denied the respondent a full
opportunity to be heard by refusing to admit an expert report which was filed on the last day of the evidentiary
hearing. In ADG v ADI (n 17), the Singapore High Court declined to set aside an award on the grounds that
the respondent had been denied an opportunity to present its case. The High Court found, at [126], that the
tribunal's decisions to declare the proceedings closed and to refuse the respondent's application to reopen them
had shown ‘regard for the rules [of] natural justice and its obligation to be fair to both parties’. Likewise, the
Singapore High Court declined in Dongwoo Mann+Hummel Co Ltd vMann+Hummel GmbH [2008] 3 SLR(R)
871 (Singapore High Court) at [69-72 and 129] to set aside an award even though the claimant had submitted
evidence to the tribunal in response to an order for production but not to the respondent in contravention of
the tribunal’s order, Even though the respondent did not have an opportunity to be heard on that evidence, the
High Court noted that it did have the chance to present its case regarding whether the tribunal should draw
a negative inference from the claimant's violation of the tribunal’s order. There was also no evidence that the
tribunal actually relied on the claimant's evidence in rendering its decision, The Court thus held that there was
no breach of the rules of natural justice or prejudice to the respondent. See also SIAC Rules (2016), Rule 19.4.
'9 SIAC Code of Ethics for an Arbitrator (2015) para 1.1.
20 SIAC Rules (2016), Rule 13.3.

164
 A. Rule 19—Conduct of the Proceedings

Furthermore, SIAC arbitrators are paid with reference to the amount in dispute,*' rather
than time spent working on a matter. Thus, they are incentivized to resolve a dispute as
quickly as possible.
d. Finality
Assuming a dispute is not settled during the course of an arbitration, the tribunal’s ultimate 9.15
objective is to make a decision that is final, binding, and enforceable on the issues that have
been referred to it for determination. This applies regardless of whether the award is a final,
interim, interlocutory, or partial award.”

2. Rule 19.2

The Tribunal shall determine the relevance, materiality and admissibility of all evidence. The
Tribunal is not required to apply the rules of evidence of any applicable law in making such
determination.
The tribunal has full power to determine what evidence to admit into the record and the 9.16
weight (or relevance) the evidence will be given in its deliberations and reasons for decid-
ing.” The predecessor to Rule 19.2 provided that ‘Evidence need not be admissible in law.’24
The current iteration of the rule indicates that the tribunal ‘is not required’ to apply the rules
of evidence of any applicable laws but it would be within its discretion to do so. Thus, the
rules of evidence applicable in Singapore court litigation—such as those relating to hearsay
or perhaps the admissibility of contract negotiations—do not automatically apply to arbi-
tration in Singapore.”
The Singapore courts have recognized that Rule 19.2, in conjunction with Rule 41.2, affords 9.17
the Tribunal ‘a wide and flexible power to deal with evidence’.”® This power, however, is not
unqualified: ‘it is subject to the standards set by the rules of natural justice and in particular
the right to be heard’.

3. Rule 19.3

As soon as practicable after the constitution of the Tribunal, the Tribunal shall conduct a pre-
liminary meeting with the parties, in person or by any other means, to discuss the procedures
that will be most appropriate and efficient for the case.

21 SIAC Rules (2016), Rule 34.1. The parties, however, can agree an alternative to the ad valorem method of
remuneratingan arbitrator such as the adoption of an agreed hourly rate. See Ch 15.
22 PT First Media TBK v Astro Nusantara International [2013] SGCA $7 at [140].
23 While not binding, a tribunal may be guided in that regard by the IBA Rules on the Taking of Evidence
in International Arbitration 2010 (IBA Rules (2010)).
24 SIAC Rules (2010 and 2013), Rule 16.2.
25 Evidence Act (Cap 97, 1997 Rev Ed) (Singapore), s2(1): ‘PartsI,II and III [ofthis Act] shall apply to all
judicial ngs in or before any court, but not to affidavits presented to any court or officernor toproceed-
ings before an arbitrator.’ (Emphasis added.)
26 ADG v ADI (n 17), discussing Rules 16.1 and 36.2 of the 2010 SIAC Rules. The High Court further
notedat [111]: ‘Parties who choose to arbitrate in Singapore or under the SIAC Rules ... agree to give the
Tribunal a widendflexiblediscretionto determine its ownprocedures and processesando receiveandeval
competing evidence and arguments in order toarrive at its
“7 ilstlliaiateediilatliecssnesatan ners aiinlevicnslac on shetighe wovehen dalesifegtilicl
ae oem: tintectitita i0)-0:{0ith eccheIAGRedes
mical
resolution
and econo of the dispute: ADG v ADI (n 17) at [112]. See also SIAC Rules
anes Rule 19.4.
165
 Conduct ofProceedings (SIAC Rules 19 to 26)

a. Preliminary meeting
9.18 The SIAC Rules require the tribunal to hold a preliminary meeting with the parties as soon
as practicable after the constitution of the tribunal to determine the procedure most appro-
priate for the arbitration.
9.19 The procedural issues to be considered at the preliminary meeting include:
(a) the seat, language, and applicable law of the arbitration (Rules 21, 22, and 27(n),
respectively);
(b) the number and order of written submissions (Rule 20);
(c) the form and style to be followed in the preparation of written submissions and witness
evidence (Rules 20 and 25);
(d) whether any issues will be the subject of expert evidence and whether the tribunal should
appoint its own experts (Rules 25 and 26);
(e) whether witness and expert evidence should be filed with the written submissions, as
is common in continental Europe and the United States, or subsequent to the written
submissions, as is done in England and Singapore (which is discussed in paragraphs
[9.35 to 9.38]);
(f) whether the tribunal will rely on the IBA Rules (2010) or any other guidelines when
assessing the admissibility of evidence and document requests;
(g) document production;
(h) notice details for communications with the parties and the tribunal during the
arbitration;
(i) the potential bifurcation or trifurcation of the proceedings (Rule 19.4); and
(j) whether there is a need for a hearing and, if so, the length and dates of the hearing
(Rule 24).

9.20 A tribunal will also often determine, after consulting the parties, the procedural timetable for
the arbitration at the preliminary meeting.
9.21 The preliminary meeting can be conducted by any means, and is often done over the phone.
Any decisions reached at the preliminary meeting, including the procedural timetable to be
followed, will ordinarily be recorded in a procedural order issued to the parties and the SIAC
Secretariat.
9.22 Finally, it is possible that the tribunal may be called upon to rule on procedural, and possibly
even substantive, issues before the tribunal has had the opportunity to convene apreliminary
meeting under Rule 19.3.78
b. Memorandum ofIssues
9.23 The 2007 SIAC Rules require the tribunal to prepare a Memorandum of Issues.2? The
Drafting Committee of the 2010 SIAC Rules was concerned that the preparation of such
a document could increase costs and cause delay in some cases. Thus, while not required
by the 2010, 2013, or 2016 SIAC Rules, it remains within the discretion of the tribunal to

tne tee nen oe nae

28 In one case in 2016 in which the author of this chapter was involved, the tribunal determined a request for
security for costs, the production of documents, and damages for the breach of an arbitration agreement before
any meetings or calls were held with the parties.
29 SIAC Rules (2007), Rule 17.1,

166
 A. Rule 19—Conduct of the Proceedings

draw up, in consultation with the parties, a list of the issues to be determined. (In practice,
this is usually best done after an exchange of written submissions and in preparation for an
oral hearing rather than at the beginning of the arbitration as contemplated in the 2007
SLAC Rules.)

4. Rule 19.4

The Tribunal may, in its discretion, direct the order of proceedings, bifurcate proceedings,
exclude cumulative or irrelevant testimony or other evidence and direct the parties to focus
their presentations on issues the decision of which could dispose of all or part of the case.
4. Inquisitorial powers ofthe tribunal; bifurcation
A tribunal may determine that the proceedings should be bifurcated into two phases, trifur- 9.24
cated into three, or broken down into more phases in order to fulfil its duty under Rules 19.1
and 41.2 to conduct the arbitration expeditiously and economically.
An objection to jurisdiction, for instance, may be dealt with as a separate issue if itsdetermin- 9.25
ation may dispose of some or all of the case. As a general rule, however, it is not appropriate
to split the determination of issues that are so intertwined that it is not possible to decide one
independently of the other.
For arbitrations seated in Singapore, the LAA follows the civil law approach of allowing a 9.26
tribunal ‘to adopt if it thinks fit inquisitorial processes’.3' Similarly, Rule 19.4 of the SIAC
Rules provides that the tribunal may direct the parties to focus their presentations on rele-
vant issues which can dispose of all or part of the case. It may exclude cumulative or irrelevant
testimony, documents, or other evidence.

5. Rule 19.5

Unless otherwise agreed by the parties, the presiding arbitrator may make procedural rulings
alone, subject to revision by the Tribunal.
a. Procedural decisions made by the presiding arbitrator
The 2007 SIAC Rules** require the presiding arbitrator to consult with his or her co- 9.27
arbitrators before making a procedural ruling. The omission of this requirement from the
2010, 2013, and 2016 SIAC Rules reflects the concern that there may be occasions where
it is impractical for the chair to consult the co-arbitrators, such as where a co-arbitrator is
travelling or otherwise unavailable, or unnecessarily duplicative. In any event, any decision
made by the presiding arbitrator alone can be subsequently overturned or revised by a major-
ity of the tribunal.3

30 eg in Kempinski Hotels SA v PT Prima International Development [2011] 4SLR 633 (Singapore High
Court) at [11-13], the arbitrator decided not to bifurcate the proceedings to address the question of whether
the contract was illegal because: ‘Illegality cannot operate in the abstract. It involves questions of mixed fact and
law. Illegality is not such a preliminary issue like res judicata, estoppel, or an essential substantive requirement
of an action ... aswould destroy the claim completely at the outset.’
31 IAA,s12(3). AA, s23(2) provides that ‘the arbitral tribunal may . .. conduct the arbitration in such man-
it considers appropriate’.
we STAC Rules (2007), Rule 15.3: ‘A presiding arbitrator may, after consulting the other arbitrator(s), make
procedural rulings alone.
33 SIAC Rules (2016), Rule 19.5; SIAC Rules (2010 and 2013), Rule 16.5.

167
 Conduct ofProceedings (SIAC Rules 19 to 26)

9.28 The types of‘procedural rulings’ that may be made by the presiding arbitrator alone pursuant
to Rule 19.5 are not limited in scope. Nonetheless, it would not be appropriate (other than in
exceptional circumstances) for the presiding arbitrator to determine alone procedural issues
that have a substantive impact on the rights of the parties, such as a request for an injunction
or security for costs.
9.29 A presiding arbitrator should consult with his or her co-arbitrators at an early stage of the
arbitration to determine which issues may be determined by the presiding arbitrator alone.
The preliminary meeting referenced in Rule 19.3 may present an opportunity for the parties
to be consulted on any such arrangements.

6. Rule 19.6

All statements, documents or other information supplied to the Tribunal and/or the Registrar
by a party shall simultaneously be communicated to the other party.
9.30 Subject to Rule 13.6, which as explained in Chapter 8 identifies limited circumstances in
which a party may communicate with an arbitrator on an ex parte basis, the parties and their
representatives are required pursuant to Rule 19.6 to refrain from ex parte communications
with the tribunal members.*4
9.31 Communications with the tribunal should be copied to any party which refuses to partici-
pate in the arbitration. This is necessary to ensure that the non-participating party is given
an opportunity to be heard throughout the arbitration.

7. Rule 19.7

The President may, at any stage of the proceedings, request the parties and the Tribunal to
convene a meeting to discuss the procedures that will be most appropriate and efficient for the
case. Such meeting may be conducted in person or by any other means.
9.32 The tribunal has an obligation to ensure that the proceedings are being conducted fairly,
expeditiously, and economically at all stages of the arbitration. Should it be necessary, the
presiding arbitrator or sole arbitrator may call for a meeting or conference call at any stage
of the proceedings in order to get the arbitration back on track towards an efficient, fair and
cost-effective outcome.

B. Rule 20—Submissions by the Parties

9.33 Rule 20 provides guidance on the conduct of the written phase of a SIAC arbitration. It
proceeds as follows:
20.1—the tribunal's power to set the procedure;
20.2—the Statement of Claim;
20.3—the Statement of Defence;
20.4—any counterclaims;
20.5—amendments to a submission;
20.6—additional submissions;

nnn steer oer

* For a discussion of ex parte requests for interim relief, see Ch 13.

168
 B. Rule 20—Submissions by the Parties

20.7—the submission of supporting documents;

20.8—the consequences of a failure by the claimant to submit a Statement of Claim in good
time; and
20.9—the consequences of a failure by the respondent to submit a Statement of Defence in
good time.

— . Rule 20.1

Unless the Tribunal determines otherwise, the submission of written statements shall proceed
as set out in this Rule.
a. The tribunal's power to depart from the Rule 17 procedures
Rules 19.1 and 20.1 of the 2016 SIAC Rules do not expressly allow the parties to reach an 9.34
agreement on matters of procedure that is binding on the tribunal. While the tribunal must
consult with the parties, should their views diverge on how the arbitration should be con-
ducted, it is the tribunal which has the final word on matters of procedure, including on the
extent to which there should be a departure from Rules 20.2 to 20.9. In contrast, the 2007
SIAC Rules expressly allow the parties to reach an agreement on matters of procedure.35

2. Rule 20.2

Unless already submitted pursuant to Rule 3.2, the Claimant shall, within a period of time to
be determined by the Tribunal, send to the Respondent and the Tribunal a Statement of Claim
setting out in full detail:
a. astatement of facts supporting the claim;
b. the legal grounds or arguments supporting the claim; and
c. the relief claimed together with the amount of all quantifiable claims.

a. Statement ofClaim
There are two main schools of thought as to how initial submissions should be prepared in 9.35
international arbitration. The first approach resembles the formal ‘pleadings’ used in court
procedures in many common law jurisdictions, including Singapore. Such pleadings set out
a party's claims or defences in concise terms and provide ‘particulars’ of the facts on which
a party relies. Witness statements and the full range of documents relied on by a party are
filed at a later date agreed with the tribunal. Lengthy hearings are usually held at which the
witnesses are examined and extensive legal submissions made.
This approach is reflected in the 2007 SIAC Rules, which require the claimant to file its 9.36
‘Statement of Case’ (with the terminology itself betraying the rule’s common law origins)
within 30 days of receipt of notice that the tribunal has been constituted. The limited time
available to the claimant to prepare the pleading necessarily means that the ‘Statement of
Case’ will be, other than for the very smallest of cases, a concise submission setting out in

35 SIAC Rules (2007), Rule 16.1: ‘Unless the parties have agreed otherwise under Rule 15 [Conduct of the
Proceedings] or theTribunal determines otherwise, the submission of written statements and documents shall
proceed asset out in this Rule.’
36 The obligation tofile a ‘Statement of Case’ in the SIAC Rules (2007), Rule 16.3 reflects the Singapore
domestic court practice on which the SIAC Rules were originall y in particular, LCIA Rules (1998),
based and,
Art 15.2.

169
 Conduct ofProceedings (SIAC Rules 19 to 26)

only broad terms the claims raised. In such circumstances, the full details of aparty's pos-
ition may not emerge until later in the proceedings, and possibly not until the hearing. (This
approach to pleadings can still be seen in some Singapore domestic arbitrations.)
9.37 The alternative approach, and the one that now predominates in international arbitration
practice, is the filing of written submissions (often called ‘memorials’) which set out a party's
case in full and which are usually accompanied by witness evidence, legal authorities, and
supporting documents. The principal advantage of front-loading the written presentation of
a case in this way is that it allows the duration of the oral hearing, which is usually the most
expensive part of the process, to be kept toa minimum.
9.38 A move towards this international approach can be detected in the SIAC Rules. Rule 20.2
of the 2016 SIAC Rules (and Rule 17.2 of the 2010 and 2013 versions of the SIAC Rules)
provides that the Statement of Claim must set out in ‘full detail’>” the statement of facts
supporting the claim, the legal grounds or arguments relied on, and the relief claimed. In
contrast to the 2007 SIAC Rules, no time limit is prescribed for when the submission must
be filed, leaving it to the tribunal and the parties to craft a procedure suitable for the circum-
stances of the case.
9.39 Rule 20.2 should be read with Rule 20.7, which indicates that all supporting documents
should be filed with a submission. The SIAC Rules, however, are silent as to whether the
Statement of Claim should be accompanied by witness evidence. The expectations of the
tribunal in this regard should be clarified at the preliminary meeting referenced in Rule 19.3.
9.40 The form in which written submissions and any documents and legal authorities accompa-
nying them should be tendered should also be clarified by the tribunal at an early stage of
the arbitration.
9.41 One of the challenges with having limited initial pleadings followed by the submission of
witness and documentary evidence (as required in the 2007 SIAC Rules and still evident in
some Singapore domestic arbitrations) is that the witness evidence may change a party’s legal
case from that which was previously pleaded. This raises the question as to whether in such
circumstances a party's pleading needs to be amended. The point was considered in the case
of Kempinski Hotels SA v PT Prima International Development,3® where the Singapore High
Court set aside three of five awards on the basis that the arbitrator had addressed a point
which, while raised during the course of the arbitration, had not been formally pleaded. The
High Court held that a party could not ‘raise material and unpleaded points without having
first made an application to amend their pleadings’.39
9.42 On appeal, the Singapore Court of Appeal disagreed. It took a more pragmatic view of
pleadings. It considered that the ‘crucial point’ is whether a matter fell within the scope of
the parties’ submission to arbitration, not whether it had been formally pleaded.“ The Court
continued:

37 In contrast, the ‘Statement of Case’ under the LCIA Rules (2014), Art 15.2 only requiresa claimant's case
to be described in ‘sufficient detail’.
38 Kempinski Hotels SA v PT Prima International Development (n 30).
3° Kempinski Hotels SA v PT Prima International Development (n 30) at (54).
<b a International Development v Kempinski Hotels SA [2012] 4 SLR 98 (Singapore Court ofAppeal)
at [42].

170
 B. Rule 20—Submissions by the Parties

In our view, any new fact or change in the law arising after a submission to arbitration which
is ancillary to the dispute submitted for arbitration and which is known to all the parties to the
arbitration is part of that dispute and need not be specifically pleaded.*'

The Court of Appeal further noted that the claimant had not suffered any prejudice by the evo- 9.43
lution in the respondent's case without its pleadings being formally amended, as it ‘had ample
notice of [the respondent's] case on this particular point
.4
The SIAC Rules were amended in 2013 following the Court of Appeal’s decision. Rule 27(m), 9.44
discussed in Chapter 12, allows a tribunal to determine an issue not raised in a partys submis-
sions filed under Rule 20, provided ‘such issue has been clearly brought to the attention of the
other party and that other party has been given an adequate opportunity to respond’.
A claimant may elect to treat its Notice of Arbitration as its Statement of Claim or submit 9.45
the Statement of Claim in a separate document when filing its Notice of Arbitration pur-
suant to Rule 3.2. As previously noted,*? there are risks that a party should consider before
filing a Statement of Claim in advance of receiving the respondent's Response to the Notice
of Arbitration and before the tribunal has been constituted.
Finally, Rule 20.2 requires the claimant to send the Statement of Claim to both the respond- 9.46
ent and the tribunal. In addition, while not expressly stated, a copy of all pleadings should be
sent to the Secretariat to facilitate, among other things, the Registrar's scrutiny of any awards.

3. Rule 20.3

Unless already submitted pursuant to Rule 4.2, the Respondent shall, within a period of time
to be determined by the Tribunal, send to the Claimant a Statement of Defence setting out
in full detail:
a. astatement of facts supporting its defence to the Statement of Claim;
b. the legal grounds or arguments supporting such defence, and
c. the relief claimed.

a. Statement ofDefence
The opening words of Rules 20.3 reflect the fact that a respondent may file its Statement of 9.47
Defence as part of its Response to the Notice of Arbitration pursuant to Rule 4.2 if the claim-
ant has elected to treat its Notice of Arbitration as its Statement of Claim.“
SIAC has dispensed with the old requirement under the 2007 SIAC Rules for the defence to 9.48
be submitted within a fixed 30-day period after receipt of the claimant’s submission in favour
of greater flexibility for the tribunal and the parties to determine a schedule appropriate for
the case. In practice, respondents are usually given between one and three months to respond
to a Statement of Claim (unless the arbitration is being expedited). For the most complex
cases, a respondent may be granted a longer period of time. y
The respondent is required to set out its defence in ‘full detail’. Depending on the prefer- 9.49
ences of the tribunal, it is not necessary for a respondent in an arbitration conducted under

SA(n 40) at [47] (emphasis added).

41 PT Prima International Development vKempinski Hotels
«@ ee aneenaemdiesamamniemahiMenk: iia rentiaee 28
43 See the discussion
of Rule 3.2 in Ch 5.
4 Ibid.

171
 Conduct ofProceedings (SIAC Rules 19 to 26)

the SIAC Rules to admit or deny every assertion made by the claimant (as is often seen in
common law court litigation, and which is expressly required under the 2007 SIAC Rules).*°
Rather, the SIAC Rules require the respondent to set out its defence in ‘full detail’,“® leaving
it to the respondent to determine the format in which this is expressed.
9.50 The Statement of Defence should contain any objections that the respondent may have to
the tribunal’s jurisdiction. This is important. A respondent can only raise a jurisdictional
objection later if the tribunal considers the delay to be justified.*”
9.51 A respondent may raise in its Statement of Defence one or more counterclaims which fall
within the scope of the arbitration agreement.*® Curiously, this right is no longer stated
expressly in the SIAC Rules,*? but nonetheless still exists.5° As noted in Chapter 10 in the
context of a discussion of Rule 28.5, the relevant applicable law will determine the extent to
which a set-off defence, as opposed to a counterclaim, can be raised which falls outside the
express terms of an arbitration agreement.
9.52 Any counterclaims must conform to the same requirements as prescribed for a Statement of
Claim under Rule 20.2. That is, the respondent must set out the claim in ‘full detail’, includ-
ing addressing the specific matters raised in Rule 20.2.
9.53 Rule 20.3 requires the respondent to serve a copy of the Statement of Defence on the claim-
ant and the tribunal. In addition, the respondent should send a copy of its pleading to the
Secretariat.

4. Rule 20.4

If a Statement of Counterclaim is made, the Claimant shall, within a period of time to be

determined by the Tribunal, send to the Respondent and the Tribunal a Statement of Defence
to Counterclaim setting out in full detail:
a. astatement of facts supporting its defence to the Statement of Counterclaim;
b. the legal grounds or arguments supporting such defence; and
c. the relief claimed.

a. Counterclaims
9.54 Ifa counterclaim is made, the claimant has the opportunity to file a Statement of Defence to
Counterclaim, which, among other things, should set out the facts and legal grounds for its
defence to the counterclaim. The claimant should provide ‘full detail’ of its defence.5"

45 SIAC Rules (2007), Rule 16.4: ‘The Respondent shall send to the Claimant a Statement of Defence stat-
ing in full detail which of the facts and contentions of law in the Statement of Case it admits or denies, on what
grounds, and on what other facts and contentions of law it relies.’ (Emphasis added.) For a discussion
on the
different approaches to the drafting of pleadings, see paras [9.35—9.46].
“6 SIAC Rules (2016), Rule 20.3.
“” SIAC Rules (2016), Rule 28.3; IAA, s 3(1), 1985 UNCITRAL Model Law, Art 16(2).
“8 See the second sentence of SIAC Rules (2016), Rule 20.5.
“9 SIAC Rules (2013), Rule 17.3: ‘The Statement of Defence shall also state any counterclaim, which shall
comply with the requirements of Rule 17.2.’ :
50 SIAC Rules (2016), Rule 20.4 allows a claimant to respond to a Statement of Counterclaim
filed by a
respondent with its Statement of Defence.
' As mentioned in the first edition of this book, Rule 17.4 of the 2010 and 2013 SIAC Rules
required the
claimant to ‘admit or deny’ the facts and contentions of law in the Statement of Counte
rclaim. This was odd
as a similar provision in the 2007 SIAC Rules requiring the respondent in its Statement of
Defence to ‘admit
172
 B. Rule 20—Submissions by the Parties

5. Rule 20.5

A party may amend its claim, counterclaim or other submissions unless the Tribunal considers
it inappropriate to allow such amendment having regard to the delay in making it or prejudice
to the other party or any other circumstances. However, a claim or counterclaim may not be
amended in such a manner that the amended claim or counterclaim falls outside the scope of
the arbitration agreement.

a. Amending a submission
As explained in paragraphs [9.41 to 9.44], a tribunal may determine an issue not formally 9.55
pleaded provided the ‘issue has been clearly brought to the notice of the other party and that
other party has been given adequate opportunity to respond’.52 However, in order to avoid
any doubt as to whether an amended position can be considered by a tribunal, a party may
wish to amend its submissions pursuant to Rule 20.5.
The drafting history to the SIAC Rules reveals that Rule 20.5 is based on Article 20.1 of the 9.56
Swiss Chambers’ Arbitration Institution (SCAI) Rules of International Arbitration 2004.
Commentators discussing the Swiss Rules (2004) note that the rule regarding the amendment
of a claim, counterclaim, or defence does not apply to the development of an existing claim or
defence through the introduction of new facts, evidence, or arguments.®? Rather, Rule 20.5
of the SIAC Rules is directed towards the introduction of new causes of action or defences.
When determining whether to accept an amendment to a party's submissions, the tribunal 9.57
will have regard to the delay in the making of the amendment and any prejudice it may cause
to the other party.* The clear implication is that the earlier an amendment is made the more
likely it is to be accepted.
If the proposed amendment is made at a late stage, the tribunal will need to consider 9.58
whether it is appropriate to change the procedural timetable to give the other party a reason-
able opportunity to deal with the new case put forward by its opponent. The tribunal will
also need to consider whether the amendment has any costs consequences for either party.
Finally, Rule 20.5 confirms that an amendment will not be allowed if the amended claim or 9.59
counterclaim falls outside the scope of the arbitration agreement.

6. Rule 20.6

The Tribunal shall decide which further submissions shall be required from the parties or
may be presented by them. The Tribunal shall fix the periods of time for communicating such
submissions.

a. Further submissions
Two rounds of written submissions are increasingly the norm in international arbitration 9.60
’ v)
(although that may not be appropriate if the case is not particularly complex or the amount

or deny’ the claimant's contentions of fact and law (SIAC Rules (2007), Rule 16.4) had been replaced with the
more flexible concept of the respondent setting out its defence in ‘full detail’ (SIAC Rules (2016), Rule 20.3).
This anomaly iscorrected in Rule 20.4 of the 2016 SIAC Rules. : .
2 16), Rule27(m); PT Prima International Development v Kempinski Hotels SA(n 40) at [42].
a Pehcbuhio KMaller,od yt Swiss Rules ofInternational Arbitration: Commentary (Kluwer
Law International2005) 179-80, referring to the Swiss Rules (2004), Art 20.1.
54 SIAC Rules (2016), Rule 20.5.

173
 Conduct ofProceedings (SIAC Rules 19 to 26)

in dispute is relatively low). Thus, following the filing of the Statement of Defence, the claim-
ant is often given the opportunity to file a ‘Statement of Reply’, which is then addressed by
the respondent in a ‘Statement of Rejoinder’.
9.61 A tribunal may determine, in consultation with the parties at an early stage of the proceed-
ings (such as at the preliminary meeting held pursuant to Rule 19.3) how many rounds of
submissions should be filed by the parties. Alternatively, the tribunal may wait until the con-
clusion of the first round of submissions before determining whether the issues in dispute
have been sufficiently narrowed so as to facilitate their determination or whether they still
require further ventilation in additional submissions.
9.62 ‘The parties may be invited to file submissions on discrete issues. These include requests for
interim relief or the disclosure of documents, challenges to an arbitrator, or objections to the
tribunal’s jurisdiction.
9.63 A tribunal may also request written post-hearing submissions (often referred to as post-
hearing briefs or memorials) whereby each party sums up its case in the light of the evidence
given at the hearing.

7. Rule 20.7

All submissions referred to in this Rule shall be accompanied by copies of all supporting docu-
ments which have not previously been submitted by any party.
a. Supporting documents
9.64 A party should submit all necessary supporting documents with its written submissions. In
order to keep costs to a minimum, a party need not include any documents which have been
previously submitted by a party.
8. Rule 20.8

If the Claimant fails within the time specified to submit its Statement of Claim, the Tribunal
may issue an order for the termination of the arbitral proceedings or give such other directions
as may be appropriate.
a. Failure to submit a Statement ofClaim
9.65 A claimant has an obligation to prosecute its claim without delay. If it fails to submit
its Statement of Claim by the date specified by the tribunal, the tribunal may order
the termination of the proceedings. Alternatively, and more commonly, the tribunal
may issue other directions, such as granting the claimant an extension of time to file its
submissions.
9.66 ‘The tribunal should consult with the parties before deciding to terminate the proceedings.
If the claimant has ceased participating in the arbitration, the respondent may be willing to
finance the continuation of the arbitration in an effort to recover its costs or obtain a decision
on any counterclaims it has raised.

9. Rule 20.9

If the Respondent fails to submit its Statement of Defence, or if at any point any
party fails to
avail itself of the opportunity to present its case in the manner directed by the
Tribunal, the
Tribunal may proceed with the arbitration.

174
 C. Rule 21—Seat of the Arbitration

4. Failure to submit a Statement ofDefence

The tribunal may proceed with the arbitration ifthe respondent fails to submit its Statement 9.67
of Defence within the time specified by the tribunal or any party fails to participate in the
arbitration at any stage. Thus, consistent with international standards,* a respondent cannot
derail a SLAC arbitration simply by ignoring the tribunal’s orders.
Any failure by the respondent to submit its Statement of Defence does not mean that the 9.68
respondent is excluded from the proceedings. All communications from the tribunal and
the other party should continue to be sent to the respondent to preclude any argument that
the respondent has beer denied its opportunity to be heard. The respondent may choose to
participate in the arbitration at a later date.

C. Rule 21—Seat of the Arbitration

A SIAC arbitration must have a legal seat or place. It must be connected to the laws of 9.69
a jurisdiction, typically Singapore, and be subject to supervision by the courts of that
place.*”

1. Rule 21.1

The parties may agree on the seat of the arbitration. Failing such an agreement, the seat of
the arbitration shall be determined by the Tribunal, having regard to all the circumstances of
the case.

55° ICC Rules (2017), Art 6.8; LCIA Rules (2014), Art 15.8; HKIAC Rules (2013), Art 26; Swiss Rules
(2012), Art 28; SCC Rules (2017), Art 35.
56 The 1985 UNCITRAL Model Law, as incorporated into the IAA, uses the phrase ‘place of arbitration’,
whereas the SIAC Rules refer to the ‘seat’ of arbitration. Both terms refer to the legal or juridical seat of the
arbitration as distinct from the geographical location where hearings may be held for reasons of conveni-
ence (see Rule 21.2, discussed at paras [9.80—9.82]). PT Garuda Indonesia v Birgen Air [2002] 1 SLR(R)
401 (Singapore Court of Appeal) para 24: ‘It will be seen that the English concept of “seat of arbitration” is
the same as “place of arbitration” under the Model Law.’ The AA confirms that ‘place’ means ‘juridical seat’:
AA, s 2(1).
5? Singapore law (like English law, which it follows on this point) does not recognize ‘the concept of
arbitral procedures floating in the transnational firmament, unconnected with any municipal system of
law’: Bank Mellat v Helliniki Techniki SA [1983] 3 All ER 428 (English Court of Appeal), 431, per Kerr LJ.
The Minister of State for Law commented during the second reading speech for the Arbitration Bill 2001
(Singapore) that:
... the bill adopts the territorial criterion recommended in the Model Law and affirms the position
that every arbitration held in Singapore must be governed by an applicable law of arbitration either
under the International Arbitration Act or under this Bill. The concept of a ‘delocalised’ arbitration
unconnected with any system of municipal laws would not be recognised under Singapore law ...
of
Ministry Law, ‘Second Reading Speech on Arbitration Bill 2001 by Law Minister Ho Peng Kee’, 5
October 2001. Singapore law does not follow the French law approach, which ‘appears to recognise
a system of “transnational” or “supranational” arbitral awards, whereby awards do not derive their
validity and legitimacy from a particular local system of law’: PT FirstMedia TBK (formerly known
as PT Broadband Multimedia TBK) v Astro Nusantara International BVand ors (2013) SGCA 57
(Singapore Court of Appeal) para 76. |
Some civil law countries, notably France, have adopted the delocalized theory which diminishes therole of
of
courtsattheseat ofarbitration. See Jan Paulsson, “The Extent Independ ence Arbitration from
ofInternational
the Law of theSitus’ in J Lew (ed), Contemporary Problems inInternational Arbitration (Centre for Commercial
Law StuQueen
die Marys,
College 1986
at[141].
)
175
 Conduct ofProceedings (SIAC Rules 19 to 26)

a. Party autonomy
9.70 The parties can and, ifat all possible, should agree the seat of the arbitration. This is a sig-
nificant decision. The law of the seat of arbitration will typically provide the procedural law
governing the arbitration proceedings (the /ex arbitri).5® The tribunal is obliged to apply any
applicable mandatory provisions of the law of the seat of the arbitration.*? Furthermore, the
courts of the seat of the arbitration will have the power to supervise the arbitration and deter-
mine any challenges to arbitrators and review awards issued by the tribunal. While courts
in some countries have shown a willingness to enforce an award even if it has been set aside
at the seat of arbitration, the view has taken hold in Singapore that an enforcement court
should be reluctant to second-guess the decisions taken by a court at the seat of arbitration.
Indeed, the principle of party autonomy is interpreted to require respect for the parties’
choice as to which courts would supervise the arbitration. Thus, the instincts of a Singapore
court will be to give effect to the decisions of the court at the seat of arbitration out of comity
for that court as well as respect for the parties’ choice of seat.
3.71 Accordingly, it is important that the parties choose a legal home for the arbitration which is
neutral in relation to the parties, which has a sound legislative framework for arbitration, and
whose courts have a reputation for integrity and competence.
8.72 While Rule 21.2 permits hearings and meetings to be held at locations other than the seat of
the arbitration, in the absence of a contrary agreement between the parties the seat is likely
to be the default location for hearings and meetings.*' Thus, the ease with which an arbitra-
tion can be conducted, including the availability of suitable hearing facilities and support
services, should also be considered when choosing a seat.
9.73 Enforcement of an arbitration award must also be considered when choosing a seat. States
which are parties to the New York Convention can make a reciprocity reservation whereby
they will only apply the New York Convention to the recognition and enforcement of awards
made in other State parties. Singapore has made such a reservation.® India has gone farther
and only recognizes awards rendered in States that have adopted the New York Convention
and which are gazetted as reciprocal States by the government of India.®

SaaS emeernnemenememeeeememee a a ee

°8 For a discussion of the lex arbitri, see Ch 12.

°? For a discussion on the mandatory law applicable to an arbitration, see Ch 5.
6° Justice Sundaresh Menon, Patron’s address, Chartered Institute of Arbitrators London Centenary
Conference, 2 July 2015, para 59, available at <http://www.supremecourt.gov.sg> (accessed 8 February 2017).
6! For a discussion of Singapore as a place for arbitration, see Ch 1.
6? New York Convention, Art 1(3) permits a signatory State to, ‘on the basis of reciprocity declare that
it will apply the Convention to the recognition and enforcement of awards made only in the territory of
another Contracting State’. UNCITRAL, ‘Status: Convention on the Recognition and Enforcement of Foreign
Arbitral Awards’ (New York 1958), available at <http://www.uncitral.org/uncitral/en/uncitral_texts/arbitra-
tion/NYConvention_status.html> (accessed 15 March 2017).
® IAA, Part III, provides for the enforcement of foreign awards. Section 27 of the IAA defines a ‘foreign
award’ as an ‘arbitral award made in pursuance of an arbitration agreement in the territory of a Convention
country other than Singapore’. For a discussion of Singapore's reciprocity reservation to its obligations
under the
New York Convention, and other means by which awards can be enforced in Singapore outside
the New York
Convention, see Ch 2.
™ Singapore has been gazetted by the government of India: PS Rao, ‘Enforcement of Foreign
Arbitral
Awards in India: Condition of Reciprocity’ in AJ van den Berg (ed), /nternational Arbitration
and National
peta > Never Ending Story, \CCA Congress Series, 2000, New Delhi Vol 10 (Kluwe
r Law International

176
 C. Rule 21—Seat of the Arbitration

Ideally, the parties will choose the seat at the time they negotiate the arbitration agreement. 9.74
Indeed, it has been said that a failure to do so represents a failure of the negotiation process.®
But if they do not do so, the parties will have a further opportunity to agree the seat of the
arbitration after a dispute has arisen,® albeit usually in more contentious circumstances as
compared to the negotiation of the arbitration agreement.
b. Selection ofthe seat in the absence ofan agreement ofthe parties
The 2007, 2010, and 2013 SIAC Rules provide that, in the absence of an agreement between 9.75
the parties or of special circumstances, the default seat for an arbitration is Singapore.®
The adoption of Singapore as the default seat in the 2007, 2010, and 2013 SIAC Rules 9.76
has a number ofadvantages. It avoids unnecessary costs and delay associated with argu-
ments between the parties as to the seat of the arbitration if they have not been able to
reach an agreement. It is also most likely to conform to the parties’ expectations when
they chose to resolve their disputes under the SIAC Rules but failed to specify a seat for
the arbitration.
There is no default seat, however, under the 2016 SIAC Rules. In the absence of an agreement 9.77
between the parties, a tribunal constituted under the 2016 SIAC Rules may select whatever
seat it considers most appropriate having regard to all the circumstances of the case.®8
The tribunal is likely to take into account the same types of issues that parties consider when 9.78
choosing a seat, as discussed in paragraphs [9.70—9.73], namely, the need to select a neutral
seat with a sound legislative framework for arbitration and a supportive judiciary, conveni-
ence to the parties (and the tribunal), and whether the State in which the potential seat is
located has acceded to the New York Convention. In addition, the tribunal could consider
whether the parties have agreed on applicable law and choice of arbitration rules, which
might be indicators of their preferred seat of the arbitration.
Rule 21.1 does not expressly provide that the parties will be given an opportunity to com- 9.79
ment on the tribunal’s proposed choice of seat. In practice, however, the parties will usually
be consulted. Indeed, in the absence of a prior agreement on the seat of the arbitration, the
claimant should make a proposal on the choice of seat in its Notice of Arbitration pursuant
to Rule 3.1(f), on which the respondent can comment or make an alternative proposal in its
Response pursuant to Rule 4.1(c).

2. Rule 21.2

The Tribunal may hold hearings and meetings by any means it considers expedient or appro-
priate and at any location it considers convenient or appropriate.

6 L Craig, W Park, andJPaulsson, /nternational Chamber of Commerce Arbitration (3rd edn, Oceana 2000)
185, para 12.01.
& 2016), Rules 3.1(f) and 4.1(c).
sa pn eon tintions ian! (and, unlike SIAC, retained) a default rule for the choice of
seat. The Australian Centre for International Commercial Arbitration Rules (2016) (ACICA Rules (2016)),
Art 14.1, and the LCIA Rules (2014), Art 16.2 provide, respectively, for
Art 23.1, the HKIAC Rules (2013),
Sydney, Hong Kong, and London as the default seat ofarbitration.
68 SIAC Rules (2016), Rule 21.1. In contrast, the SIAC Registrar can decide whether another seat is more
appropriate under the SIAC Rules (2007), Rule 18.1.

177
 Conduct ofProceedings (SIAC Rules 19 to 26)
eee
a. Hearings and meetings
9.80 Consistent with Singapore law, Rule 21.2 confirms that the tribunal may hold hearings and
meetings relating to the arbitration at the seat ofthe arbitration or any other place.
9.81 The legal seat of the arbitration will remain the same regardless of where a hearing or meeting
takes place,” a point expressly recognized by the Singapore Court of Appeal in PT Garuda
Indonesia v Birgen Air. The Court of Appeal held it was:
Unable to accept Garuda’s contention that just because the parties eventually agreed with the
arbitrators’ suggestion that the hearing be held in Singapore, there was in consequence such
an agreement to alter the place of arbitration from Jakarta to Singapore. What was changed
was the ‘venue of [the] hearing’.”'

9.82 The tribunal also has the power to hold hearings and meetings by any means it considers
expedient or appropriate, including via telephone or video-conference.

D. Rule 22—Language of Arbitration

1. Rule 22.1

Unless otherwise agreed by the parties, the Tribunal shall determine the language to be used
in the arbitration.
9.83 The parties can agree the language or languages to be used in the arbitration. In order to avoid
(or at least reduce) potentially significant translation costs, parties will generally choose the
same language in the underlying contract and/or in which they have conducted the majority
of their dealings.
9.84 Parties should also bear in mind that the choice of language will have an impact on the pool
of potential arbitrators. The SLAC Code of Ethics for an Arbitrator (2015) provides that an
arbitrator should not accept an appointment unless he or she has adequate knowledge of the
language of the arbitration.”
9.85 In the absence of an agreement of the parties, the tribunal shall determine the language of
the arbitration.”3 The tribunal will consider any submissions on the issue from the parties,”

69 1985 UNCITRAL Model Law, Art 20(2) incorporated into Singapore law pursuant to LAA, s 3(1) pro-
vides that ‘the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appro-
priate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of
goods, other property or documents’.
70 Union ofIndia v McDonnell Douglas [1993] 2 Lloyd’s Rep 48 (English High Court) at [50]:
... although the choice of a ‘seat’ also indicates the geographical place for the arbitration, this does
not mean that the parties have limited themselves to that place . . . it may often be convenient to hold
meetings or even hearings in other countries. This does not mean that the ‘seat’ of the arbitration
changes with each change of country, The legal place of the arbitration remains the same even if the
physical place changes from time to time, unless of course the parties agree to change it.
™ PT Garuda Indonesia v Birgen Air (2002) 1 SLR(R) 401 (Singapore Court of at [35].
72 SIAC Code of Ethics for asArbitrator (2015) para 1.1. A a
typo
73 There is no default language in SIAC arbitration. In contrast, CIETAC Rules (2015), Art 81.1 provides
that Chinese is the default language for CIETAC arbitration.
74 SIAC Rules (2015), Rules 3.1(j) and 4.1(c) allow the parties to include in the Notice of Arbitration and
the Response to the Notice of Arbitration ‘any comment as to the language of the arbitration’.

178
 E. Rule 23—Party Representatives

as well as the language of the contract.’> The tribunal naturally will also have regard to the
languages in which its members are proficient.
Use of more than one official language can multiply the costs of written submissions and 9.86
hearings. Rule 22.1 provides that, in the absence ofan agreement of the parties, the tribunal
shall determine the ‘language’ of the arbitration, whereas Rule 22, which would encompass
cases in which the parties have agreed the language of the arbitration, refers to language(s)’
in the plural. The difference between the two provisions appears to be a deliberate signal to
tribunals to be wary of imposing multiple languages on parties due to its potential impact
on costs.
There may be times, however, where the use of multiple languages in an arbitration can 9.87
save time and money, such as when all parties and tribunal members can work in multiple
languages. In such circumstances, the parties may agree to have the arbitration conducted in
multiples languages. Alternatively, even if one interprets Rule 22.1 as allowing the tribunal
to name only one official language of the arbitration, the tribunal can decide to accept docu-
ments in another language under Rule 22.2.

2. Rule 22.2

If a party submits a document written in a language other than the language(s) of the
arbitration, the Tribunal, or if the Tribunal has not been constituted, the Registrar, may
order that party to submit a translation in a form to be determined by the Tribunal or the
Registrar.
Rule 22.2 confirms that a tribunal (and the Registrar if the tribunal has not been constituted) 9.88
may accept a document in a language other than the language of the arbitration. It might
do so, for instance, where all members of the tribunal understand the language of the docu-
ment. Alternatively, the tribunal or the Registrar may order a party to submit a translation
of a foreign-language document.

E. Rule 23—Party Representatives

1. Rule 23.1

Any party may be represented by legal practitioners or any other authorised representatives.
The Registrar and/or the Tribunal may require proof of authority of any party representatives.
The applicable rules of arbitration and the law of the seat of the arbitration are relevant to the 9.89
question of who may represent a party.
The SIAC Rules, consistent with their hallmarks of party autonomy and procedural flexibil- 9.90
ity, provide that a party is free to choose its representatives, which can include persons not
qualified as lawyers.

75 This principle isstated expressly in ICDR Rules (2014), Art 18:

the parties agreed otherwis e,s) ofthearbitration shallbethelanguage(s)of
thelanguage(
lee dest
aieecinesganeneyatliecs vothepowerafta,ccbnnal ss
mine otherwise.

179
 Conduct ofProceedings (SIAC Rules 19 to 26)

9.91 Similarly, under Singapore law, a person may representa party in domestic and international
arbitration proceedings even if that person is not licensed to practice in Singapore. This
includes cases in which the governing law is Singapore law.’®
9.92 Singapore law has not always been this accommodating. In the late 1980s, the Singapore
High Court held that foreign attorneys could not appear in arbitration proceedings held in
Singapore under the Arbitration Act.’” In 1992, the Legal Profession Act (Singapore) was
amended to allow foreign lawyers to appear as counsel in Singapore-based international
and domestic arbitrations.’® Foreign lawyers, however, were required to act jointly with a
Singapore lawyer in cases where the /ex causae was Singapore law.’°
9.93 Section 35 of the Legal Profession Act (Singapore) was subsequently amended in 2004 to
allow any person (including non-legal practitioners)® to represent a party in arbitration
proceedings,®' which was interpreted in practice as being from the moment the Notice of
Arbitration was filed. The regime was further liberalized in 2008 to allow licensed foreign law
firms to practise Singapore law® in relation to the drafting of contracts that incorporate an
international® arbitration agreement with Singapore as the seat of arbitration.
9.94 Unlike earlier iterations of the SIAC Rules, the 2013 and 2016 SIAC Rules do not require a
party’s representative to furnish proof of authority to act ona party’s behalf in the arbitration.
This change is consistent with Singapore court practice.8* Rule 23.1 was amended in 2016,
however, to incorporate the second sentence, which makes clear that the tribunal or Registrar
has the right to seek a power of attorney should it be considered appropriate.

2. Rule 23.2

After the constitution of the Tribunal, any change or addition by a party to its representatives
shall be promptly communicated in writing to the parties, the Tribunal and the Registrar.

7° Legal Profession Act (Cap 161, 2009 Rev Ed) (Singapore), s 35(1).
”” Turner (East Asia) Pte Ltd v Builders Federal (Hong Kong) Ltd and Joseph Gartner & Co [1988] 1 SLR(R)
281 (Singapore High Court) paras 21-23 and 34.
78 Legal Profession (Amendment) Act 1992 (No7 of 1992) (Singapore), s 2; Legal Profession Act (Cap 161,
2009 Rev Ed) (Singapore), s 35.
79 Legal Profession (Amendment) Act 1992 (No 7 of 1992) (Singapore), s 2.
%° In December 2011, the Singapore Ministry of Law proposed an amendment to the Legal Profession Act
(Cap 161, 2009 Rev Ed) (Singapore), s 35 so that only persons who are qualified to practise law (regardless of
jurisdiction), and who continue to be entitled to do so, will be able to act as counsel in arbitration proceedings in
Singapore. Pursuant to feedback from public consultation, that proposed revision was eventually removed from
the Legal Profession (Amendment) Bill 2012 that was presented and passed in Parliament: ‘Proposed amend-
ments to the Legal Profession Act’, Ministry of Law, 6 December 2011, available at <http://www.mlaw.gov.
sg/news/press-releases/public-consultation-on-the-legal-profession-amendment-bill-2012.html> (accessed
13
October 2017).
81 Legal Profession (Amendment) Act 2004 (No 23 of 2004) (Singapore), s 6.
8 The meaning of ‘practise Singapore law’ in this context is explained in the Legal Profession (Interna
tional
Services) Rules 2008 (Singapore), s 14(5).
83 The meaning of ‘international’ in this context is set out in IAA, s 5(2).
84 Legal Profession (International Services) Rules 2008 (Singapore), s 14(4)(a).
8 SIAC Rules (2010), Rule 20; SIAC Rules (2007), Rule 20.
% ‘Council's Practice Direction 6 of 2009’, Law Society of Singapore, 1 December 2009:
A law practice should as a general rule accept another law practice's written representation
that the
latter is authorised to act for a particular client on the face value of the representation
made, unless
there are good reasons for suspecting that the representation has been falsely made.

180
 E Rule 24— Hearings

A party has the right to change its counsel team during the course of an arbitration. If it 9.95
does, the change should be promptly communicated to the other parties, the tribunal and
the Registrar.

F. Rule 24—Hearings
Rule 24 details the procedure by which a hearing is conducted in a SIAC arbitration. It is 9.96
usually complemented by one or more procedural orders issued by the tribunal regarding
the conduct of hearings.

1. Rule 24.1

Unless the parties have agreed on a documents-only arbitration or as otherwise provided in

these Rules, the Tribunal shall, if either party so requests or the Tribunal so decides, hold a
hearing for the presentation of evidence and/or for oral submissions on the merits of the dis-
pute, including any issue as to jurisdiction.
The right of a party to request and be granted a hearing is a fundamental tenet of its right to 9.97
be heard.*” A hearing can only be avoided under the SIAC Rules if (a) all parties agree to the
tribunal proceeding on the documents alone, or (b) neither party requests a hearing and the
tribunal considers that a hearing is not required.
Thus, a tribunal may conduct a hearing when it considers it appropriate even if not requested 9.98
by either party,®* but cannot do so ifthe parties have agreed on a documents only arbitration.®

2. Rule 24.2

The Tribunal shall, after consultation with the parties, set the date, time and place of any meet-
ing or hearing and shall give the parties reasonable notice.
It is the responsibility of the tribunal, after consultation with the parties, to fix the date, time, 9.99
and place of any meeting or hearing to be held during the arbitration.
Some arbitration rules stipulate a minimum notice period in advance of any hearing.%° The 9.100
SIAC Rules are more flexible, requiring that the parties be given ‘reasonable notice’,®’ with
the length of time to be determined by the circumstances. Notice should be given to all par-
ties, including those declining to participate in the arbitration but over which the tribunal is
exercising jurisdiction. This is necessary to ensure that every party is given the opportunity
to be heard.

87 See the discussion on Rule 19.1 at paras 9.04—9.15 and ofnatural justice in Ch 2.
88 The words ‘or the tribunal so decides’ were added to the equivalent provision in the 2010 SIAC Rules.
89 It is the practice in certain trades (and for some low value disputes) for arbitration to be conducted on
the documents alone or on what is sometimes referred to as a ‘look and sniff basis: Merkin and Hjalmarsson,
Sa Kathie (n 15) 38.
eg CIETAC Rules (2015), Art 37.1 requires the parties to be given at least 20 days’ notice in advanceof

; 91 This isconsistent with the approach taken in the ICC Rules (2017), Art 26(1); LCIA Rules (2014), Art
19.3; HKIAC Rules (2013), Art 22.4; Swiss Rules (2012) Art 25.1;,SCC Rules (2017), Art 32.2; UNCITRAL
Rules (2010), Art 28.1.

181
 Conduct ofProceedings (SIAC Rules 19 to 26)

9.101 The tribunal is not constrained under the SIAC Rules or as a matter of Singapore law to
hold the hearing or a meeting at the seat of the arbitration.** The terms of the arbitration
agreement, as well as the convenience of the parties, witnesses, and arbitrators, and access to
suitable facilities, will need to be considered by the tribunal when fixing the venue of ameet-
ing or hearing. Maxwell Chambers, the home of SIAC and the world’s first fully integrated
international arbitration complex, is a popular choice for hearings in Singapore.”

3. Rule 24.3

If any party fails to appear at a meeting or hearing without showing sufficient cause for such
failure, the Tribunal may proceed with the arbitration and may make the Award based on the
submissions and evidence before it.
9.102 A tribunal may proceed with a hearing in the absence of a party if the party fails to appear
without ‘sufficient cause’.*4 Rule 24.3 is reinforced in this regard by Rule 27(1), which pro-
vides that the tribunal may proceed with the arbitration notwithstanding the failure or
refusal of any party to comply with the tribunal’s orders or directions or to attend any meet-
ing or hearing. Rule 27(1) further provides that the tribunal may impose such sanctions on
the non-compliant party as the tribunal considers appropriate.
9.103 SIAC has advised that in one case under the 2010 SIAC Rules the tribunal ordered that a
rescheduled hearing should proceed in the absence of the respondent. The hearing had been
adjourned once due to the non-attendance of the respondent. The tribunal held that the
respondent had failed to establish ‘sufficient cause’ for its non-attendance at the resched-
uled hearing as (a) the alleged order of the relevant court preventing the respondent's travel
was unsubstantiated and inconclusive, (b) the respondent could have appointed counsel to
attend the proceedings and/or applied for the witness to give evidence from his home coun-
try by video-conference, and (c) the respondent failed to give any prior notice or explanation
for its non-attendance.
9.104 When proceeding with an arbitration pursuant to Rules 24.3 and 27(1), the tribunal should
ordinarily continue to send all communications and notices of all procedural meetings and
hearings to the non-participating party in order to avoid subsequent complaints from that
party that they were denied an opportunity to be heard.

4, Rule 24.4

Unless otherwise agreed by the parties, all meetings and hearings shall be in private, and any
recordings, transcripts, or documents used in relation to the arbitral proceedings shall remain
confidential.
9.105 Rule 24.4 addresses two distinct issues, namely privacy and confidentiality. As to the former,
a person not involved in a meeting or hearing or authorized as aparty or tribunal represen-
tative will ordinarily not be admitted into the room where the hearing or meeting is taking
place, without the agreement of the parties. As to the latter, an obligation of confidentiality

ts
% See the discussion of Rule 21.2.
%3 For a discussion of Singapore as a venue (and seat) for arbitration hearings, see Ch 1.
HKIAC Rules (2013), Art 26.2 and CIETAC Rules (2015), Art 39.1 also require a party to show
‘suffi-
cient cause’ in this context.

182
 G. Rule 25—Witnesses

prohibits the disclosure of information or documents relating to the arbitration to persons

not involved in the arbitration.
The use of the verb ‘remain’ in the last line of Rule 24.4 suggests that the rule does not 9.106
itself classify recordings, transcripts, or documents arising out of or used in the arbitra-
tion as confidential but reinforces the confidentiality of such relevant material arising from
another source. One such source is Rule 39 which, as explained in part B of Chapter 16,
provides that the ‘pleadings, evidence and other materials and all other documents produced
by another party in the proceedings’ shall be treated as confidential unless otherwise in the
public domain.

G. Rule 25—Witnesses
Rule 25 prescribes a number of tribunal powers in relation to the adducing of evidence from 9.107
factual and expert witnesses.

1. Rule 25.1

Before any hearing, the Tribunal may require the parties to give notice of the identity of wit-
nesses, including expert witnesses, whom the parties intend to produce, the subject matter of
their testimony and its relevance to the issues.

Rule 25.1 provides that a tribunal may request the parties to identify, in advance of any hear- 9.108
ing, the witnesses they intend to call to give evidence and the issues to be addressed by each
witness.

2. Rule 25.2

The Tribunal may allow, refuse or limit the appearance of witnesses to give oral evidence at
any hearing.
A party’s right to be heard has its limits. Consistent with international arbitral practice, 9.109
a SIAC tribunal has the power to allow, refuse, or limit the appearance of witnesses. This
power enables a tribunal to fulfil its overriding obligation under Rules 19.1 and 41.2 to
ensure that the procedure is fair, expeditious, and economical.*” Witness evidence may, for
instance, be limited or excluded if it is irrelevant or duplicative, or where a party has not given
prior notice of its intention to call the witness pursuant to Rule 25.1.

3. Rule 25.3

Any witness who gives oral evidence may be questioned by each of the parties, their representa-
tives and the Tribunal in such manner as the Tribunal may determine. .

Art 8(2) provide

95 IBA Rules (2010), s ‘shall at all times have complete control over the
that atribunal
Evidentiary Hearing’ and may limit or exclude the appearance ofa witness.
% This poweris reinforced bySIACRules (2016), Rule19.4, whichprovides thatchetribunal may‘exclude
cumulative orirrelevant testimony’.
gf Sern diesusdicn dndberliciitemnneatay'osiehtvoibe benndyace checomsnencaty eoRule19.1 in this chapter
and theprinciples ofnatural justice inCh2.
183
 Conduct ofProceedings (SIAC Rules 19 to 26)
_—_—E—E—E—=Ee
a witness
9.110 The tribunal has the power, and the responsibility, to control the manner in which
is questioned.
of
9.111 The IAA and AA grant the tribunal the power to administer oaths or take affirmations
witnesses.%8
ting
9.112 A witness's testimony usually begins with a brief direct examination by the party presen
on
the witness. This is followed by cross-examination by the other side’s counsel. Re-examinati
of the witness may follow by the party which presented the witness for the purpose of clarify-
ing issues arising during the cross-examination.
9.113 The tribunal has the power to stop inappropriate questioning, as well as to ask its own ques-
tions of a witness at any time during the examination. While practice varies, tribunals often
endeavour to keep interventions to a minimum and to pose questions after counsel have
concluded their lines of questioning.
9.114 The tribunal may determine that a witness can be examined by video-conference or
other means.
9.115 The tribunal, in consultation with the parties, determines the order in which the witnesses
appear and whether certain witnesses are to be examined together (in a procedure sometimes
referred to as ‘witness-conferencing’) or remotely via video-conference or similar technology.
4, Rule 25.4

The Tribunal may direct the testimony of witnesses to be presented in written form, either as
signed statements or sworn affidavits or any other form of recording. Subject to Rule 25.2,
any party may request that such a witness should attend for oral examination. If the witness
fails to attend for oral examination, the Tribunal may place such weight on the written tes-
timony as it thinks fit, disregard such written testimony or exclude such written testimony
altogether.
9.116 A SIAC tribunal typically will order a party to submit written statements from any witnesses
upon whom they intend to rely. Rule 25.4 is applicable to both fact and expert (or opinion)
evidence.
9.117 The timing of witness evidence is usually set by directions or a procedural order issued by
the tribunal after consultation with the parties. Witness statements may be filed with or
after written submissions. Each method has its advantages,9® with the former being more
common.'

9% IAA, s 12(2); AA, s 28(2)(d).

9° ‘Turner and Mohtashami, LC/A Arbitration Rules (n 2) para 5.41, lists several of the advantages of sim-
ultaneous service of a legal submission with related witness statements, including (a) permitting each party to
present its case on both the facts and the law in a coherent fashion, as each submission is a complete snapshot
of the relevant party's case, and (b) allowing for a more efficient and streamlined procedure, as the separate
exchange of witness evidence inevitably leads to a lengthier procedure. With that said, it can be a logistical chal-
lenge to coordinate the submission of interdependent evidence and submissions. ,
100 Queen Mary University of London's School of International Arbitration and White & Case, ‘2012
International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’ (2012) 33 available at
<www.arbitration.qmul.ac.uk/docs/164483.pdf> (accessed 30 November 2017): of the survey's respondents,
53 per cent confirmed that their practice was to submit written submissions with exhibits, witness statements
and expert reports.

184
 G. Rule >, Witnesses

The tribunal may agree to accept a witness statement in a form that is not signed or sworn, 9.118
such as in an email or video recording.
In the event that a witness who has been requested to attend a hearing fails to do so, the 9.119
tribunal has the discretion to place such weight on the witness's prior written testimony as
it thinks fic or to disregard it altogether. The tribunal will weigh the reasons for the non-
attendance against the opposing party’s due process right to challenge any adverse evidence.
For arbitrations seated in Singapore, section 13 of the IAA provides that the Singapore High
Court ‘may order that a subpoena to testify ... shall be issued to compel the attendance
before an arbitral tribunal of a witness wherever he may be within Singapore’.

5. Rule 25.5

It shall be permissible for any party or its representatives to interview any witness or potential
witness (that may be presented by that party) prior to his appearance to give oral evidence at
any hearing.

Consistent with international arbitration practice,’ Rule 25.5 allows interviews of a party’s 9.120
(own)'°? witnesses or potential witnesses prior to the hearing.
[t is necessary to consider, however, whether counsel is constrained in relation to his or her 9.121
dealings with witnesses by the applicable law or the rules of ethics to which he or she is sub-
ject.’ In some jurisdictions, particularly in the European civil law tradition, the conduct of
pre-hearing witness interviews in court proceedings are regarded as unethical.’ Civil law
jurisdictions in Asia, such as Japan and Korea, permit the interviewing of witnesses both
in court and arbitration proceedings.’ This approach bears a closer resemblance to the
practice in common law jurisdictions, where counsel are allowed (and indeed expected) to
interview witnesses before a hearing.
In particular, Singapore law allows the interviewing of witnesses and prospective wit- 9.122
nesses.'°° But witness ‘coaching’ is not permissible under Singapore law. The Singapore High

101 TBA Rules (2010), Art 4(3) provides: ‘It shall not be improper for a Party, its officers, employees, legal
advisors or other representatives to interview its witnesses or potential witnesses and to discuss their prospective
testimony with them.’
102 ‘The application of this rule to a party's own witnesses was made explicit for the first time in the SIAC
Rules (2013).
103 This is so notwithstanding the omission of the words: ‘Subject to the mandatory provisions of any applic-
able law’ in the 2013 SIAC Rules but which appear in Rule 22.5 of the 2007 and 2010 SIAC Rules.
104 eg counsel in France, Switzerland, and Belgium are not permitted to conduct pre-hearing witness inter-
views in court proceedings. H Van Houte, ‘Counsel-Witness Relations and Professional Misconduct in Civil
Law Systems’ (2003) 19(4) Arb Int 457. These restrictions, however, do not apply to arbitration proceedings.
105 KY Kim, J Bang (eds) Arbitration Law of Korea: Practice and Procedure, (Juris 2012) para 5.11.3; Y
Taniguchi, “The Development of an Adversary System’, in D Foote (ed) Law in Japan: A Turning Point,
of
(University Washington Press 2007) 85.
196 Singapore Legal Profession (Professional Conduct) Rules 1998, Rule 66, states, in the context of court
litigation, that:
Subject torule 63, anadvocat e may interview and take statements from any witness or
and solicitor
prospective witness atanystage inthe proceedings, whether ornot that witness has been interviewed
or called asa witness by another partytothe proceedings except that if the advocate andsolicitoris
aware that the witness has been called or issued a subpoena to appear in Court by the other party to
the proceedings, heshall inform the advocate and solicitor ofthe other party or the prosecution in
criminal proceeding, asthe case may be, ofhis intention tointerview ortake statements from the
witness.

185
 Conduct ofProceedings (SIAC Rules 19 to 26)
Eee
Court has recently held, in the context of court litigation, that while a witness can be taken
through his or her witness statement, as well as relevant documents, to assist in his or her
‘recollection of the facts’, such ‘guidance and familiarisation’ by reference to documents
becomes coaching when it seeks to supplement or support the witnesses ‘true recollection
with another version of events’. 1°? While the distinction between permissible witness prep-
aration or familiarization and illegitimate witness ‘coaching’ can bea fine one, the Singapore
High Court laid down the following guidelines for interactions between counsel and wit-
nesses prior to a Singapore court hearing:'°
© counsel and witnesses may have group discussions in the early stages of a dispute as part of
evidence gathering, particularly where the case is complex;
witnesses can be shown documents which may correct faulty memories;
¢ legal counsel can help draft witness statements, but the account of events should be
described in the witness's own words as far as possible;
* prior to a hearing, counsel may take a witness through his or her written statement to
refresh the witness's memory of the document and its contents;
© witnesses on the same side may discuss their evidence amongst themselves, as long as they
do not do so with a view to ensure that they ‘speak with one voice’; and
* guidance and familiarisation by reference to documents becomes coaching when it
seeks to supplement or supplant the witnesses’ true recollection with another version of
events.

H. Rule 26—Tribunal-appointed Experts

9.123 When both sides present expert witnesses, the tribunal may be faced with a so-called “battle
of the experts’.'°9 This has been described as ‘one of the least satisfactory features of modern
international arbitrations’."'°
9.124 The tribunal may consider itself unable to make a reasoned evaluation between two opposed
professional opinions on complex technical matters without the assistance of its own expert.
In such circumstances, the tribunal may, unless the parties have agreed otherwise, and after
consulting the parties, appoint its own expert to report on specific issues.""'

'07 Compania De Navegacién Palomar v Ernest Ferdinand Perez De La Sala 2017] SGHC 14 at [272-73],
“atieh the principles laid down by the English Court of Appeal in R v Momodou [2005] 2 All ER 571 at

108 It is an open question as to the extent to which these principles apply to arbitration and in jurisdictions
other than Singapore. The issue of witness ‘training’ was also recently considered by the English High Court
in Energy Solutions EU Ltd v Nuclear Decommissioning Authority [2016] EWHC 1988 (TCC). The claimant's
factual witnesses in that case had attended ‘training’ sessions conducted by an external service provider prior to
the evidential hearing. Perhaps as a result of such ‘training’, each of the witnesses avoided answering questions
candidly under cross-examination and sought instead to advance the claimant's case. The Court emphasized
that such practices are ‘counterproductive’ and to be discouraged in any litigation.
'09 Craig, Park, and Paulsson, /nternational Chamber of Commerce Arbitration (n 65) 442.
"10 N Blackaby, C Partasides et al (eds), Redfern and Hunter on International Arbitration (6th edn, OUP
2015) para 6.138
"" The origins of this practice lie in court litigation in civil law jurisdictions: JDM Lew, LA Mistelis, and SM
Kroll, Comparative International Commercial Arbitration, (Kluwer Law International 2003) 574-75. By way of
illustration, the German Civil Procedure Code (ZPO), s 404(1) provides that the selection of experts and the
determination of the number of experts will be conducted by the court.

186
 H. Rule 26—T ribunal-appointed Experts

1. Rule 26.1

Unless otherwise agreed by the parties, the Tribunal may:

a. following consultation with the parties, appoint an expert to report on specific issues; and
b. require a party to give any expert appointed under Rule 26.1(a) any relevant informa-
tion, or to produce or provide access to any relevant documents, goods or property for
inspection.

a. Party autonomy
The SIAC Rules allow the parties to refuse the appointment of a tribunal-appointed expert. 9.125
The parties may consider it too costly or likely to cause delays. The parties may also be con-
cerned that a tribunal-appointed expert will reduce their ability to manage the facts and
issues considered by the tribunal.
The parties may be able to address the needs of the tribunal by having the party-appointed 9.126
experts confer to see what technical elements can be agreed, leaving the outstanding issues
to be determined at the hearing. Another practice intended to narrow the technical issues in
dispute is to have the experts questioned together at the hearing.
SIAC has advised that, in practice, tribunals rarely appoint their own experts. 9.127

b. Multiple tribunal-appointed experts

The 2007 SIAC Rules expressly allow the tribunal to appoint multiple ‘expert(s)’. While 9.128
Rule 26.1 only refers to the appointment of an ‘expert’ (ie in the singular), multiple experts
can be appointed by a tribunal if a case is sufficiently technically complex (and the amount
in dispute sufficiently high) so as to warrant more than one expert.
c. A party’s obligation to support a tribunal-appointed expert
The tribunal-appointed expert typically will be dependent upon materials provided by the 9.129
parties. Thus, the tribunal may require the parties under Rule 26.1(b) to produce or to pro-
vide the tribunal-appointed expert with access to any relevant information, documents,
goods, or property.

2. Rule 26.2
Any expert appointed under Rule 26.1(a) shall submit a report in writing to the Tribunal.
Upon receipt of such written report, the Tribunal shall deliver a copy of the report to the par-
ties and invite the parties to submit written comments on the report.
a. Procedural fairness
While the SIAC Rules have in the past allowed a tribunal-appointed expert to deliver his or 9.130
her findings orally,"'? Rule 26.2 requires that the expert must submit his or her opinion in
writing. A copy must then be provided to the parties, and the parties given the opportunity
to comment on the report.

3. Rule 26.3
Unless otherwise agreed by the parties, if the Tribunal considers it necessary or at the request
of any party, an expert appointed under Rule 26.1(a) shall, after delivery of his written report,

eee one senor ee oo ee Ee

112 STAC Rules (2007), Rule 23.2.

187
 Conduct ofProceedings (SIAC Rules 19 to 26)

participate in a hearing. At the hearing, the parties shall have the opportunity to examine such
expert.
a. Questioning ofthe tribunal-appointed expert
9.131 Unless the parties agree that a tribunal-appointed expert need not attend a hearing after
delivery of his or her written report, Rule 26.3 provides that the expert shall attend the
hearing ‘if the Tribunal considers it necessary’ or, in an amendment made in 2016, a party
requests that the tribunal-appointed expert be available for questioning.
9.132 The SIAC Rules do not expressly address the question of what assistance a tribunal-appointed
expert can provide to the tribunal during its deliberations. As a matter of Singapore law, and
bearing in mind the injunction in Rules 26.2 and 26.3 requiring the parties to be given an
opportunity to be heard on tribunal-appointed expert reports, a tribunal-appointed expert
presumably may assist the tribunal in its deliberations in an administrative capacity but not
undertake work ‘of a judicial nature’.

SURERSR
a EERE encase: aeeeee
"3 Luzon Hydro Corp v Transfield Philippines Inc (2004] 4 SLR(R) 705 (Si re Co
that case, the Singapore High Court dismissed an application to set aside an etaon Se De 1
eat haan
had abdicated responsibility to a tribunal-appointed expert and had denied the parties a right
to respond to the
views expressed bythe expert. In doing so, the High Court noted that the expert's terms ofengage
ment
that ifa written opinion were produced, a copy would be shared with the parties. As no such opinion provided
piri ee etl iemto re the expert wasinstructed bythetribunal to was ultim-
organize and arrange the
nical evidence and answer technical questions tribunal members
to share with the parties. expert report
; ag rha 2 oa,

188
 10
JURISDICTION OF THE TRIBUNAL
(SIAC RULE 28)

A. Rule 28—Prima Facie Challenges to C. The Determination of Jurisdictional

the Jurisdiction of SIAC 10.02 Objections by the Tribunal 10,32
1. Rule 28.1 10.02 1. Rule 28.3 10.32
B. Key Principles Underpinning the 2. Rule 28.4 10.38
Jurisdiction of a SIAC Tribunal 10.11 D. Set-off Defences 10.41
1. Rule 28.2 10.11 1. Rule 28.5 10.41

Rule 28 achieves two things. First, it provides a means by which a party, typically a respondent, 10.01
can submit an early challenge to the existence or validity of an arbitration agreement or the com-
petence of SIAC, which will be determined by the SLAC Court on a prima facie basis. This has
the potential to save the parties’ significant costs if SIAC rules that it does not have jurisdiction
over the dispute. Secondly, Rule 28 confirms the power of a SIAC tribunal, once constituted, to
rule definitively on its own jurisdiction, a power which rests on the twin principles of competence-
competence and separability. In addition to addressing these matters, this chapter briefly explains
the approach taken as a matter of Singapore law to the interpretation of arbitration agreements
and the determination of whether a dispute is arbitrable. The time period within which objec-
tions to a tribunal’s jurisdiction must be raised with the SIAC Court and the tribunal are also
covered. The chapter concludes with a consideration of a SIAC tribunal's jurisdiction to hear
set-off defences.

A. Rule 28—Prima Facie Challenges to the Jurisdiction of SIAC

1. Rule 28.1

If any 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 constituted, the Registrar shall deter-
mine ifsuch objection shall be referred to the Court. If the Registrar so determines, the Court shall
decide ifit isprima facie satisfied that the arbitration shall proceed. The arbitration shall be termi-
nated ifthe Court is not so satisfied. Any decision by the Registrar or the Court that the arbitration
shall proceed is without prejudice to the power of the Tribunal to rule on its own jurisdiction.

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 Jurisdiction ofthe Tribunal (SIAC Rule 28)
EES eee
a
10.02 Rule 28.1 allows for the early termination of an arbitration in circumstances where the
SIAC Court is not prima facie satisfied that the arbitration should continue. The procedure,
which was introduced in the 2010 SIAC Rules, is modelled after a similar process in the ICC
Rules." It provides a means (along with Rule 29) by which a respondent can potentially avoid
the costs associated with having to defend itself against a claim which is clearly outside the
jurisdiction or competence of SIAC.
10.03 If an objection is raised under Rule 28.1, the Registrar will carry out an initial review to
determine whether it has sufficient merit to warrant its referral to the SLAC Court for deter-
mination. This screening of jurisdictional objections by the Registrar was introduced in the
2013 SIAC Rules? in order to prevent delays to an arbitration caused by the referral to the
SIAC Court of clearly unmeritorious challenges.
10.04 A party may raise three types of objections to jurisdiction under Rule 28.1 of the 2016 SIAC
Rules. It may allege that:
(a) the arbitration agreement relied upon by the other party does not exist;
(b) the arbitration agreement is not valid; or
(c) SIAC is not competent to administer the arbitration.

10.05 Unlike the 2010 edition of the SIAC Rules,? a party cannot raise an objection under Rule
28.1 on the basis that the claim exceeds the ‘scope of the arbitration agreement’. The omis-
sion of this ground for objection from the 2013 and 2016 SIAC Rules reflects the fact that
a challenge to the scope of an arbitration agreement is likely to require an analysis of poten-
tially complicated arguments of fact and law, which are best suited for the tribunal once
constituted, rather than the SLAC Court on a prima facie review.
10.06 Should the Registrar refer an objection under Rule 28.1 to the SIAC Court, the Court will
perform its function through a ‘Committee of the Court’, which comprises at least two
members of the SIAC Court.!
10.07 The SIAC Court must decide on a prima facie basis whether the ‘arbitration shall proceed’.
In contrast, the equivalent provision in the 2010 and 2013 SIAC Rules required the SIAC
Court to determine whether ‘a valid arbitration agreement may exist’. The previous stand-
ard of whether an arbitration agreement ‘may’ exist was a relatively low threshold to satisfy.
The new inquiry as to whether an ‘arbitration shall proceed’ may not have been intended to
change that. Thus, if a party objects to the existence of an arbitration agreement, the SIAC
Court is likely to apply the same test as before, namely whether the arbitration agreement
‘may’ exist. But if a party objects to the validity of the arbitration agreement or the compe-
tence of the SIAC to administer the arbitration,® the SIAC Court is likely to decide that the

' ICC Rules (2017), Art 6(4). For other similar rules, see SCC Rules (2010), Arts 9(i) and 10(i); HKIAC
Rules (2013), Art 110.4.
2 SIAC Rules (2013), Rule 25.1.
3 SIAC Rules (2010), Rule 25.1.
4 SIAC Rules (2016), Rule 1.3.
> Similarly, the ICC Rules (2017), Art 6(4) provides: ‘the [ICC] Court shall decide whether to what extent
the arbitration shall proceed. The arbitration shall proceed ifand to the extent that the Court is satisfied that an
arbitration agreement under the Rules may exist.’
® The change to the rule appears to reflect the fact that the old test is not well suited for these types of objec-
tions (ie ones that do not relate to whether the arbitration agreement exists).

190
 B. Key Principles Underpinning the Jurisdiction ofaSIAC Tribunal

‘arbitration shall proceed’ if there is any possibility that the objection is not well made. In
other words, ifthere is any doubt in the minds of the Court members, the arbitration should
be allowed to proceed so that the tribunal, once constituted, can consider the objections
more carefully.
If the SIAC Court is not satisfied on a prima facie basis that a valid arbitration agreement 10.08
may exist, the proceedings are terminated. In practice, the SLAC Court exercises its power to
terminate proceedings only in the clearest of cases. If it does so, the unsuccessful party (usu-
ally a claimant or counterclaimant) may have the right to challenge the decision before the
Singapore courts under the IAA or the AA.’ Specifically, the IAA and AA expressly allow a
party to challenge a negative jurisdiction ruling by an ‘arbitral tribunal’ seated in Singapore.®
It remains to be seen whether this right of challenge will extend toa ruling by the SIAC Court
that it has no jurisdiction over a dispute.
If the SIAC Registrar or Court rejects an objection to jurisdiction or the competence of SLAC 10.09
raised under Rule 28.1 and allows the arbitration to proceed, a party may raise the same or
an alternative jurisdictional objection with the tribunal once it is constituted. As the last sen-
tence of Rule 28.1 makes clear, the decision of the Registrar or the SIAC Court under Rule
28.1 does not prejudice the power of the tribunal to rule on its own jurisdiction. Indeed, the
tribunal should consider any objections to its jurisdiction de novo.'°
The SIAC Court is not required to (and in practice does not) provide reasons for deciding 10.10
objections under Rule28.1."'

B. Key Principles Underpinning the Jurisdiction of a SIAC Tribunal

1. Rule 28.2

The Tribunal shall have the power to rule on its own jurisdiction, including any objections
with respect to the existence, validity or scope of the arbitration agreement. An arbitration
agreement which forms part of a contract shall be treated as an agreement independent of
the other terms of the contract. A decision by the Tribunal that the contract is null and void
shall not entail ipso jure the invalidity of the arbitration agreement, and the Tribunal shall not
cease to have jurisdiction by reason of any allegation that the contract is non-existent or null
and void.
Rule 28.2 reflects two of the key foundation stones of international arbitration, namely the 10.11
principles of competence-competence and separability. After an explanation of these important
principles, there follows in this section a consideration of the scope of an arbitration agree-
ment, the concept of arbitrability and multi-tier dispute resolution clauses.

e
7? For a discussion on the scope of application of the [AA and AA for arbitrations seated in Singapore,

mater? 8 IAA, s 10(3)(b); AA, s (9)(b)

21(9)(b).
9 Byway ofcontrast, theICC Rules (2017), Art6(6) expressly provides that a decision bythe ICC Court to
terminate an arbitration for lack of jurisdiction can be referred by a party to ‘any court having jurisdiction’. It is
ikely that a similar right will be found to apply under the SIAC Rules and Singapore law.
A tribunal determining the issue de novo considers the matter afresh and makes an independent deter-
mina being constrained in any way by an earlier decision: PT Tugu Pratama Indonesia v Magma
withouttion
Nusantara Ltd (2003) 4 SLR(R) 257 at [18].
"1 SIAC Rules (2016), Rule 40.1.

191
 Jurisdiction ofthe Tribunal (SIAC Rule 28)

a. Competence-competence
10.12 Consider a situation where a respondent denies the existence or validity of an arbitration
agreement which is relied upon by a claimant to sue the respondent. The question that
courts, tribunals, and commentators have had to grapple with is whether a tribunal purport-
ing to exercise powers under the very arbitration agreement that is being challenged has the
authority to rule on the existence or validity of the arbitration agreement. Put another way,
if a tribunal rules that it has no jurisdiction, a party might legitimately ask (as many have)
how the tribunal had the authority to make that decision. A negative ruling on jurisdiction
should logically cut off the very jurisdictional plank upon which the tribunal was standing.
10.13 When faced with this conundrum, some courts have ruled that an arbitral tribunal cannot
determine its own jurisdiction or whether a claim is arbitrable.'2 While that is perfectly
logical, its consequence would be that any objection to jurisdiction would derail an arbi-
tration by requiring the tribunal to stay the proceedings until such time as an appropriate
court had determined the question of jurisdiction. The resulting costs and delays would
undermine the utility of arbitration in resolving disputes. Accordingly, the laws of countries
which seek to promote the use of arbitration provide that tribunals can determine issues of
jurisdiction: they are competent to determine their own competence.
10.14 The principle of competence-competence is reflected in the first sentence of Article 16(1) of
the 1985 UNCITRAL Model Law, which is incorporated into Singapore law pursuant to
section 3(1) of the IAA, in the following terms:'3 “The arbitral tribunal may rule on its own
jurisdiction, including any objections with respect to the existence or validity of the arbi-
tration agreement.’ Thus, Singapore law empowers a tribunal to determine whether it has
jurisdiction even when it finds that no such jurisdiction exists.
10.15 Following the lead of the Singapore Parliament, and consistent with established inter-
national practice, the competence-competence principle has been embraced by the Singapore
judiciary without reservation:"4
It is an accepted principle of arbitration law that an arbitral tribunal has jurisdiction to deter-
mine whether a particular person is a party to an arbitration agreement. This is referred to as
the doctrine of Kompetenz-Kompetenz... [which] state[s] that an arbitral tribunal has power
to rule on its own competence and to continue with the arbitration if it considers itself com-
petent to do so.
10.16 More recently, the Singapore Court of Appeal in Tomolugen Holdings Lid and another v
Silica Investors Ltd and other appeals confirmed that arbitral tribunals have the power to
make negative rulings on jurisdiction; a power which naturally does not rest on the parties’

"2 ATGT Technologies, Inc v Communications Workers 475 US 643, 649 (1986): ‘Unless the parties clearly
and unmistakably provide otherwise, the question of whether the parties agreed to arbitration is to be decided
by the court, not the arbitrator.’ First Options ofChicago, Inc v Kaplan 514 US 938, 943 (1995): ‘Courts should
not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that
they did so,’ quoting A&T Technologies Inc v Communications Workers at [649] (see earlier). The vast majority of
US courts have since held that the mere incorporation of arbitration rules providing for competence-competence
is sufficiently ‘clear and unmistakable’ to vest the tribunal with the power to decide its own jurisdiction. For
further discussion, see G Born, /nternational Commercial Arbitration (Kluwer Law International 2014) 1064,
which identifies China, Indonesia, Israel, and South Africa as jurisdictions that are ‘circumspect, or even hostile,
towards the doctrine of competence-competence’,
'3 TAA, s 3(1); 1985 UNCITRAL Model Law, Art 16(1); AA, s 21(1).
"4 Aloe Vera ofAmerica, Inc v Asiatic Food (S) Pte Ltd and anor [2006] 3 SLR(R) 174, para 47.

192
 B. Key Principles Underpinning the Jurisdiction of a SIAC Tribunal

arbicration agreement, which the tribunal has found does not exist, but on the law
ofthe seal
of arbitration:

It is often said that an arbitral tribunal’s jurisdiction is based on the consent of the parties as
manifested in the arbitration agreement concerned. But, it is also established that an arbitral
tribunal has the jurisdiction to determine the existence and extent of such consent. The arbi-
tral tribunal's jurisdiction to determine its own jurisdiction—known as kompetenz-kompe-
tenz—cannot be based entirely on the parties’ consent. This form of jurisdiction necessarily
precedes and exists independently of such consent. The arbitral tribunal may, in the exercise
of its kompetenz-kompetenz, conclude that there was never any consent by the parties to refer
their disputes to arbitration, and as a consequence, that it had no jurisdiction to begin with."

Consistent with Singapore law, the SIAC Rules reflect the competence-competence principle 10.17
in Rule 28.2, which provides that the tribunal ‘has the power to rule on its own jurisdiction’,
including any objection to the existence, validity or scope of the arbitration agreement.
The question remains, however, whether a SIAC tribunal seated in a jurisdiction which does 10.18
not support the competence-competence principle can rule on an objection to its jurisdiction.
In Myanmar, for instance, the competence-competence principle was not recognized until the
enactment of the Arbitration Law on 5 January 2016. Prior to that, section 33 of the 1944
Arbitration Act expressly rejected the competence-competence principle, mandating that a
party seeking to challenge the existence or validity of an arbitration agreement had to apply
to court to decide the matter.'®
Finally, even in jurisdictions such as Singapore where the principle of competence-competence is
well-accepted, the arbitral tribunal will often not have the last word on whether it has jurisdic-
tion and the scope of that jurisdiction. As discussed in Chapter 2, any ruling by a tribunal on
jurisdiction is subject to review by the Singapore High Court under both the IAA and the AA.”
b. Separability
A second principle necessary to enable a tribunal to rule on its own jurisdiction is the doc- 10.19
trine of separability,'* which dictates that an arbitration clause is considered to be separate
and divisible from the contract in which it is contained. The principle is reflected in the
second and third sentences of Rule 28.2 of the SIAC Rules, and is given legislative force in
Singapore,"? so that an allegation that a contract is null and void does not deprive an arbitral
tribunal of the power to decide its jurisdiction or to determine a claim under the contract.?°

'S Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals (2015] SGCA 57 (Singapore
Court of Appeal) at [25].
6 The Arbitration Act 1994 (Burma) provides: ‘Any party to an arbitration agreement or any person claim-
ing under him desiring to challenge the existence or validity of an arbitration agreement or an award or to have
the effect of either determined shall apply to the Court and the Court shall decide the question on affidavits.’ In
contrast, section 18(a) of the Arbitration Law 2016 (Myanmar) provides: ‘Unless otherwise agreed by the par-
ties, the arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence
validity of the arbitration agreement.’
ap IAA, s 10(3), 1985 UNCITRAL Model Law, Arts 16(3) and 34(2)(a)(i) and (iii); AA, ss 21(9) and 48(1)
(a)(ii) and (iv).
'8 The doctrine of separability wasrecognized by the Singapore Court of Appeal in Maldives Airports Co Ltd
and anor v lion 2 SLR 449 (Singapore Court of Appeal) para 19.
19 TAA, s3(1); 1985 UNCITRAL Model Law, Art 16(1) ;
AA, s21(2). ee
20 BCY v BCZ [2016] SGHC 249 at [61]. See also PT First Media TBK v Astro Nusanara International BV
and Ors {2014] 1 SLR 372 at para 43;Gove ofrnme Philippines v Phillipine International Air
the Republic ofnt
ls 1 SLR(R
Co [2007]
Termina ) 27.
278 at para

193
 Jurisdiction ofthe Tribunal (SIAC Rule 28)
sessed
neues
10.20 Like the competence-competence principle, the separability principle also has its limits. While
an arbitration clause is treated as being separate to the remainder ofthe contract in which it
sits, it can still be impugned on grounds which relate directly to the arbitration agreement
itself, as noted by Lord Hoffmann in the English House ofLords decision of Premium Nafta
Products Ltd v Fili Shipping Company Ltd:?'
The principle of separability enacted in section 7 [of the English Arbitration Act 1996] means
that the invalidity or rescission of the main contract does not necessarily entail the invalid-
ity or rescission of the arbitration agreement. The arbitration agreement must be treated as a
‘distinct agreement and can be void or voidable only on grounds which relate directly to the
arbitration agreement.

Further, as explained in Chapter 12, the better view appears to be that the separability doc-
trine should be ignored when it comes to identifying the law applicable to an arbitration
agreement, at least for arbitrations seated in Singapore.
c. Scope ofthe arbitration agreement
10.21 Rule 28.2 provides that the tribunal shall have the power to rule on the existence, validity
or scope of the arbitration agreement. The scope of an arbitration agreement determines the
breadth of a tribunal’s jurisdiction.”
10.22 Arbitration agreements typically prescribe that the scope of the tribunal's jurisdiction
extends to disputes arising ‘in connection with or ‘arising out of’ the underlying contract.
The Singapore High Court has taken the view in the past that the latter formulation is nar-
rower in scope than the former.?3 The modern approach, however, is that arbitration clauses
‘should be generously construed such that all manner of claims, whether common law or
statutory, should be regarded as falling within their scope unless there is good reason to con-
clude otherwise’.?4 The commercial rationale for such an approach was articulated by Lord
Hoffmann in the Premium Nafta case as follows:?5
In my opinion the construction of an arbitration clause should start from the assumption that
the parties, as rational businessmen, are likely to have intended any dispute arising out of the
relationship into which they have entered or purported to enter to be decided by the same
tribunal. The clause should be construed in accordance with this presumption unless the lan-
guage makes it clear that certain questions were intended to be excluded from the arbitrator's
jurisdiction.

21 Premium Nafta Products Ltd v Fili Shipping Co Ltd [2007] UKHL 40 (English House of Lords) para 17.
For further discussion, see Beijing Jianlong Heavy Industry Group v Golden Ocean Group Ltd [2013] EWHC
1063 (Comm) (English High Court). As noted in para 10.21, the Singapore courts have followed the Premium
Nafta decision.
?? As already mentioned, the SIAC Rules were amended in 2013 to make clear that objections concerning
the scope of an arbitration agreement are not to be considered by the SIAC Court on a prima facie basis, but
rather should be referred to the arbitral tribunal once it is constituted. This has been carried forward in Rule
28.2 of the 2016 SIAC Rules.
23 Sabah Shipyard (Pakistan) Ltd v Government of the Islamic Republic of Pakistan [2004] 3 SLR(R) 184
(Singapore High Court) para 18 citing Getreide-Import-Gesellschaft mbH v Contimar SA Compania Industrial
Comercial y Maritima SA {1953] 1 WLR793 (English Court of Appeal).
4 Larsen Oil and Gas Pte Ltd v Petroprod Ltd (in official liquidation in the Cayman Islands and in compulsory
liquidation in Singapore) [2011] 3 SLR 414 (Singapore Court of Appeal) para 19. See also /nternational Research
Corp ple v Lufthansa Systems Asia Pacific Pte Ltd (2013) 1 SLR(R) 973 (Singapore High Court) para 36.
25 Premium Nafta Products v Fili Shipping (n 21) para 13.

194
 B. Key Principles Underpinning the Jurisdiction of a SIAC Tribunal

The Singapore Court of Appeal in Larsen Oil and Gas Pte Lid v Petroprod Lid noted that the 10.23
Premium Nafta case ‘heralded a change in how arbitration clauses ought to be construe’.?¢
d
The Singapore Court of Appeal explained the change as follows:?’
‘There are, all in all, strong reasons for supporting a generous approach towards the construc-
tion of the scope of arbitration clauses, given that such an approach has received widespread
acceptance among the leading commercial jurisdictions, and is strongly supported by the
academic community. Such an approach is also consistent with this court’s philosophy of
facilitating arbitration ...
d. Arbitrability
The tribunal's power under Rule 28.2 of the SIAC Rules to rule on the scope of the arbitra- 10.24
tion agreement allows it to determine whether a dispute is arbitrable; that is, whether it is
capable of being determined by arbitration.
Consistent with the Singapore government’ desire to promote arbitration in Singapore, 10.25
Singapore law reflects a broad view of arbitrability. Any dispute may be determined by arbi-
tration ‘unless it is contrary to public policy to do so’ or parliament has expressly declared
an issue to be non-arbitrable. The fact that any written law confers jurisdiction in respect of
any matter on a Singapore court does not in itself indicate that a dispute about that matter is
not capable of determination by arbitration.?? The Singapore Court of Appeal in the afore-
mentioned Larsen Oil case accepted that:
... there is ordinarily a presumption of arbitrability where the words of an arbitration clause
are wide enough to embrace a dispute, unless it is shown that parliament intended to preclude
the use of arbitration for the particular type of dispute in question (as evidenced by the stat-
ute’s text or legislative history), or that there is an inherent conflict between arbitration and the
public policy considerations involved in that particular type of dispute.*°
A committee established in 1997 to review Singapore’s arbitration laws at the time observed 10.26
that the types of disputes which are not arbitrable on the grounds of public policy include:
citizenship or legitimacy of marriage, grants of statutory licenses, validity of registration
of trade marks or patents, copyrights, winding-up of companies, bankruptcies of debtors,
administration of estates.
Similarly, consistent with other common law jurisdictions,?? claims arising out of 10.27
an insolvency or bankruptcy are not arbitrable on the grounds that ‘liquidation

26 Larsen Oil and Gas v Petroprod (n 24) para 13.

27 Larsen Oil and Gas v Petroprod (n 24) para 19.
28 JAA,s 11(1).
29 IAA,s 11(2). i
30 Larsen Oil and Gas v Petroprod (n 24) para 44; followed in Tomolugen Holdings Ltd and another v Silica
Inves Ltd and other appeals [2015] SGCA 57, para 76.
tors
31 Review of Arbitration Act Committee, ‘Review of Arbitration Laws’ LRRD No 3/2001, section 2.37.17.
The Committee was established by theAttorney-General of Singapore in 1997 to review existing arbitration
in Singapore.
sesThe Supreme Court ofVictoria inA Best Floor Sanding Pty Ltd v Skyer Australia Pty Ltd {1999} VSC 170
held that an arbitration clause purporting to subject the dissolution or winding up of a company to arbitration
was null and void. The Court held at [13] that “The Corporations Law controls by statutory force the creation
and demise ofthe company ... such matters cannot and ought not tobesubject toprivate contractual arrange-
ment.’ Similarly, the Grand Court ofthe Cayman Islands in/n reCybernaut Growth Fund LP Cause No FSD 73
of 2013 (23 July 2013) held that a petition fortheliquidation ofa partnership was non-arbitrable. The Court

195
 Jurisdiction of the Tribunal (SIAC Rule 28)

is a process in which the greater public beyond the parties to the dispute have an
interest’.33
10.28 The Singapore courts, however, have shown a willingness to allow disputes to be arbitrated even
if the tribunal cannot determine all aspects of the dispute and/or grant all the relief that the
parties seek. Thus, the Singapore Court of Appeal in the recent decision of Tomolugen Holdings
Ltd and another v Silica Investors Ltd and other appeals (2015) SGCA 57 (‘Tomolugen’) held that
claims for oppression or unfairly prejudicial conduct against minority shareholders under sec-
tion 216 of the Singapore Companies Act are arbitrable.** The Court of Appeal reasoned that
the ‘essence of [such claims] lies in upholding the commercial agreement between shareholders
of acompany’, and that ‘there is, in general, no public element in disputes of this nature which
mandate the conclusion that it would be contrary to public policy for them to be determined by
an arbitral tribunal rather than by a court’.°
10.29 The Singapore Court of Appeal in Zomolugen also made clear that neither remedial inad-
equacy nor procedural complexity will render a dispute non-arbitrable. The Court held that
‘the fact that the relief sought might be beyond the power of the tribunal to grant does not
in and of itself make the subject matter of the dispute non-arbitrable’.3° Likewise, the fact a
court will need to resolve certain aspects of the dispute does not mean the remainder cannot
be determined by arbitration.?”

held at [7] that ‘there is a public interest in ensuring that all businesses are properly liquidated in the interests
of all their stakeholders. The appointment of a liquidator in these circumstances is therefore a public process
which is not suitable for determination in private by an arbitral tribunal, even where all the shareholders/ part-
ners are themselves parties to an arbitration agreement in terms wide enough to encompass a dispute about the
appointment or removal of a voluntary liquidator.’
33. Tomolugen Holdings Ltd and another v Silica Investors Ltd and other appeals (n 15) at para 83.
¥ Section 216(1) of the Singapore Companies Act provides: ‘any member or holder of a debenture of a com-
pany ... may apply to the Court for an order under this section on the ground that (a) the affairs of the company
are being conducted or the powers of the directors are being exercised in a manner oppressive to one or more
of the members or holders of debentures including himself or in disregard of his or their interests as members,
shareholders, or holders of debentures of the company; or (4) that some act of the company has been done, or is
threatened, or that some resolution of the members, holders of debentures, or any class of them has been passed
or is proposed which unfairly discriminates against or is otherwise prejudicial to one or more of the members or
holders of debentures (including himself).
% This is consistent with the approach taken in other (but not necessary all) common law jurisdictions: ACD
Tridon v Tridon Australia [2002] NSWSC 896 (Supreme Court of New South Wales); Paul Brazis and others v
Emilio Rosati and others [2014] VSC 385 (Supreme Court of Victoria); Ennio Zanotti v Interlog Finance Corp
and others Claim No BVIHCV 2009/0394 (8 February 2010) (British Virgin Islands Commercial Court);
ABOP LLC v Qtrade Canada Inc (2007) 284 DLR (4th) 171 (British Columbia Court of Appeal).
© Tomolugen Holdings Ltd and another vSilica Investors Ltd and other appeals (n 15) at para 98. The Singapore
Court of Appeal followed the approach of the English Court of Appeal in Fulham Football Club (1987) Ltd v
Richards and another [2012] Ch 333, in which the English Court of Appeal held that an underlying dispute
which could support a winding-up application under the UK Insolvency Act 1986 was arbitrable even if it lay
beyond the power of the tribunal to grant some of the remedies sought. In particular, the court held at [83] that
while ‘the [arbitration] agreement could not arrogate to the arbitrator the question of whether a winding up
order should be made’, the arbitrator could ‘legitimately, decide whether the complaint of unfair prejudice was
made out and whether it would be appropriate for winding up proceedings to take place or whether the com-
plainant should be limited to some lesser remedy’. See also Re Quiksilver Glorious Sun JV Ltd(2014] 4HKLRD
759, in which the Hong Kong High Court ordered a stay of winding up petitions brought pursuant to section
177(1)(f) of the Hong Kong Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap 32)
pending the resolution of the underlying factual dispute by arbitration.
7 Tomolugen Holdings Ltd and another vSilica Investors Ltd and other appeals (n 15) at para 105: ‘we accept
that there will be a measure of procedural complexity whenever a dispute involving some common parties and
issues hasto beresolved befo two different
re fora byvirtue of thefact that only part ofthedispute falls within the

196
 C. The Determination ofJurisdictional Objections by the Tribunal

é. Multi-tier dispute resolution clauses

Commercial parties, particularly in certain industries such as engineering and construction, 10.30
often agree that they must take active steps to try to resolve a dispute arising under a contract
before any party refers it to arbitration. As a matter of Singapore law, such multi-tier dis-
pute resolution clauses must be strictly complied with before a dispute can be submitted to
arbitration. Thus, the Singapore Court of Appeal held in /nternational Research Corp PLC v
Lufthansa Systems Asia Pacific Pte Ltd that substantial compliance with agreed pre-arbitration
procedures was not enough; the claimant must demonstrate actual compliance. In the
words of Chief Justice Sundaresh Menon:39
Where the parties have clearly contracted for a specific set of dispute resolution procedures as
preconditions for arbitration, those preconditions must be fulfilled. In the case before us, it
could not be said that the parties intended that some meetings between some people in their
respective organisations discussing some variety of matters would be sufficient to constitute
compliance with the preconditions for arbitration’. (Emphasis in the original.)
With that said, parties may agree to waive the need for strict compliance with an agreed 10.31
multi-tiered dispute resolution process.*° But there must be clear evidence of any such
waiver.*'

C. The Determination of Jurisdictional Objections by the Tribunal

1. Rule 28.3

Any objection that the Tribunal:

a. does not have jurisdiction shall be raised no later than in a Statement of Defence or in a
Statement of Defence to a Counterclaim; or
b. is exceeding the scope of its jurisdiction shall be raised within 14 days after the matter
alleged to be beyond the scope of the Tribunal’s jurisdiction arises during the arbitral
proceedings.
The Tribunal may admit an objection raised by a party outside the time limits under this
Rule 28.3 if it considers the delay justified. A party is not precluded from raising an objection
under this Rule 28.3 by the fact that it has nominated, or participated in the nomination of,
an arbitrator.

scope of the applicable arbitration clause. The question for us is whether such procedural difficulties render the
dispute non-arbitrable. We do not think it does. Of course, some, perhaps even substantial, inconvenience may
be caused by such an arrangement and this would be regrettable; but inconvenience is not the threshold that
justifies refusing a stay of court proceedings on the basis that the subject matter of the dispute is non-arbitrable.
38 International Research PLC v Lufthansa Systems Asia Pacific Pte Ltd and another [2012] SGHC 226
at [107]-[110]. misReali CoadofAppeal in Emirates Trading Agency LLC v Prime Mineral Exports Pte Ltd
[2015] 1 WLR 1145, adopting the approach taken by the Singapore Court of Appeal in Lufthansa, held that a
clause requiring parties to attempt ‘friendly discussions’ within a specific timeframe was enforceable.
39 International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd(2013) 1 SLR(R) 973 at [62].
40 Internation al
Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd (n 39) at[62]; SIAC Rules (2016),

“\ PT First Media TBK (formerly known asPT Broadband Multimedia TBK) vAstro Nusantara International
BV and others (2013) SGCA 57 at (202): “The party asserting that otherwise actionable rights have been waived
must therefore meet a high threshold of demonstrating that theadversely affected party's conduct isonlycon-
sistent with waiver and that the purported waiver had been communicated in clear and unequivocal terms.

197
 Jurisdiction ofthe Tribunal (SIAC Rule 28)

a. The timing ofjurisdictional objections

10.32 A party cannot indefinitely delay objections to a tribunal’s jurisdiction. The first part of Rule
28.3, which mirrors the first sentence of Article 16(2) of the 1985 UNCITRAL Model Law
and section 21(4) of the AA, provides that an objection to a tribunal’s jurisdiction should be
raised not later than the Statement of Defence (if the objection is made by a respondent) or
in a Statement of Defence to a Counterclaim (if made by a claimant in response to a counter-
claim).4? Thus, strictly speaking, a respondent need not raise a jurisdictional objection in its
Response to the Notice of Arbitration under Rule 4.1(a) of the SIAC Rules 2016, although
it is usually good practice for it to do so.
10.33 Any concern that the tribunal is exceeding the scope of its jurisdiction is to be raised, aceord-
ing to Rule 28.3, ‘within 14 days after the matter alleged to be beyond the scope of the
Tribunal’s jurisdiction arises’. This is potentially more onerous than under previous versions
of the SIAC Rules which required that such objections be raised ‘promptly’ .4?The early rais-
ing of an objection to the scope of a tribunal’s jurisdiction avoids costs being wasted on an
issue which may be found to be beyond the powers of the tribunal.
10.34 Rule 28.3 seeks to balance the need for efficiency with considerations of fairness by allowing
a jurisdictional plea to be made out of time with the leave of the tribunal if it considers the
delay to be justified.
10.35 The last sentence of Rule 28.3 confirms that a party’s participation in the nomination of an
arbitrator does not in itself preclude the raising of an objection to jurisdiction before either
the tribunal or a competent court.“
10.36 While the parties are subject to the time limits prescribed in Rule 28.3, the tribunal itself has
the power to examine its jurisdiction at any time during the arbitration.*5
10.37 Finally, a party’s failure to raise jurisdictional objections in a timely fashion in accordance
with Rule 28.3 may lead to a finding that its right to object has been waived.*®

2. Rule 28.4

The Tribunal may rule on an objection referred to in Rule 28.3 either as a preliminary question or
in an Award on the merits.

“2 The AA has equivalent provisions in ss 21(4), (6), and (7).

“3 SIAC Rules (2010 and 2013), Rule 25.3.
“ ‘This principle is reflected in Singapore law: AA, s 21(5), IAA, s 3(1), 1985 UNCITRAL Model Law,
Art 16(2).
*° UNCITRAL, UNCITRAL 2012 Digest ofCase Law on the Model Law, Ch IV, Art 16, para 10:
‘The inclusion of timeliness requirements in article 16(2) [of the Model Law] could be interpreted as
implicitly denying arbitral tribunals the power to examine their jurisdiction on their own motion.
However, the travaux préparatoires reveal that that was not the case. The travaux préparatoires indicate
that the ‘words “including any objections with respect to the existence or validity of the arbitration
agreement” [found in Art 16(1)] were not intended to limit the “Kompetenz-Kompetenz” of the
arbitral tribunal to those cases where a party raised an objection.’ Furthermore, the travaux prépara-
toires emphasize the arbitral tribunal's power to examine on its own motion issues of public policy
bearing on its jurisdiction, including the arbitrability of the dispute.
“© SIAC Rules (2016), Rule 41.1. The travaux préparatoires to the 1985 UNCITRAL Model Law, Art 16
suggest that a party who fails to raise a plea objecting to the tribunal's jurisdiction as required under Model Law,
Art 16(2) should be precluded from raising such objections during the proceedings as well as in setting-aside
or enforcement proceedings except where the tribunal's jurisdiction is challenged on public policy grounds:
UNCITRAL, UNCITRAL 2012 Digest (n 45), Ch IV, Art 16, para 13

198
 D. Set-off Defences

A tribunal may rule on an objection to its jurisdiction as a preliminary issue or subsequently in

10.38
conjunction with a decision on the merits. The tribunal’s choice will be dependent on the spe-
cific circumstances of the objection, and in particular, whether the facts relating to the objection
and the merits of the dispute are so closely intertwined that the issues should be heard together
and decided in a single award.”
If the tribunal elects to determine its jurisdiction as a preliminary issue on its own, it isdoubt- 10.39
ful, as explained in Chapter 14, that it can do so in the form ofan ‘award’ for an arbitration
seated in Singapore. Section 2(1) of the LAA defines an ‘award’ as a decision on the ‘substance
of a dispute’.“* On this basis, the Singapore High Court has observed that a tribunal’s ruling on
jurisdiction is not in itseifan ‘award’ under the [AA*? (but could be if combined with the deter-
mination of other issues).

The stage of an arbitration at which a tribunal renders a decision on jurisdiction may have 10.40
a bearing on the parties’ rights of challenge. For arbitrations seated in Singapore, a party
has 30 days to seek curial review of a ‘ruling’ on jurisdiction determined as a ‘preliminary
question’, whereas it has three months to challenge an ‘award’ which contains a decision on
jurisdiction.»

D. Set-off Defences
1. Rule 28.5

A party may rely on a claim or defence for the purpose of a set-off to the extent permitted by
these Rules and the applicable law.
Rule 28.5 recognizes that a party may rely on acounterclaim or defence to reduce or possibly 10.41
even eliminate the value of a claim made against it by way of a set-off.5"
‘Two situations arise. The first is where a party has a counterclaim falling within the terms 10.42
of the arbitration agreement which has given rise to the arbitration. The tribunal clearly has
jurisdiction over such a counterclaim and, if it succeeds, can be used to set off (or reduce) an
amount that would otherwise be payable to the claimant.*?

47 Fora discussion on the tribunal’s obligation to conduct the proceedings expeditiously and economically
pursuant to Rules 19.1 and 41.2, seeCh 8.
48 The same definition of an ‘award’ is found in AA, s 2(1).
49 International Research Corp ple v Lufthansa Systems Asia Pacific Pte Ltd [2013] 1 SLR(R) 973 (Singapore
High Court) para 112.
°° IAA, s 10(3); 1985 UNCITRAL Model Law, Arts 16(3) and 34(3); AA, ss 21(9) and 48(2). See Ch 14,
paras [14.02—14.03]. For a discussion on how a party retains ‘passive’ remedies against an award even if it fails
to exercise its ‘active’ remedies, see Ch 2.
51 Asa matter ofSingapore law, a debtor which has a cross-claim against a creditor can exercise a right of set-
offto reduce or extinguish the creditor's claim by the amount of that cross-claim: Engineering Construction Pte
Ltd v Sanchoon Builders Pte Ltd({201 ] 1 SLR 681 at [12]. The right to raise the defence ofset-off, however, may
benullified bythepresence ofclear and unequivocal words tothecontrary in thecontract: Sembawang Engineers
and Constructors Pte Ltd v Covec (Singapore) Pte Ltd(2008] SGHC 229 (Singapore High Court) para 51.
52 UNCIT RulesRAL(1976), Art 19(3), for instance, states expressly that a set-off canonly beasserted ifit
arises ‘out of the same contract’. In contrast, UNCITRAL Rules (2010), Art21(3) provides that ‘the respond-
ent may make a counterclaim orrely ona claim for the purposes ofa set-off provided that the arbitral tribunal
has jurisdiction over it’.

199
 Jurisdiction ofthe Tribunal (SIAC Rule 28)

10.43 Less straightforward is the question of whether a tribunal has jurisdiction to determine
the validity of a set-off defence which falls outside the arbitration agreement.*? Rule 28.5
indicates that this question should be answered with reference to the SIAC Rules (a clari-
fication added in 2016) and the applicable law. It is not entirely clear what aspects of the
SIAC Rules are relevant to the question as to whether and what type of set-off defence can
be pursued. The relevant rules could include, for instance, administrative provisions such as
those addressing need for an opponent to have received sufficient notice of the set-off plea
pursuant to Rule 27(m) of the SIAC Rules so that it may respond to it. A more onerous inter-
pretation is that the reference to the SIAC Rules in Rule 28.5 has a substantive impact on
what types of set-off defences can be raised, and in particular could potentially allow a party
to object to a set-off defence under Rules 28.1 to 28.3 on the grounds that it falls outside the
tribunal’s jurisdiction.
10.44 The Singapore law position on set-off rights in the context of arbitration was considered in
VV v VW. The claimant commenced an arbitration seeking payment of $$927,000. The
respondent raised ten counterclaims valued cumulatively at $$20 million. The tribunal's
decision to dismiss the claimant's claims and award the respondent costs of $$2.8 million
(covering, among other things, the cost of pursuing its counterclaims) was challenged before
the Singapore High Court on a number of grounds, including an argument that the coun-
terclaims fell outside the tribunal’s jurisdiction and therefore could not be the subject of a
costs order.
10.45 The Singapore High Court noted the arbitrator's views that he did not have jurisdiction to
consider the counterclaims as ‘independent claims, but might, depending on the facts, have
jurisdiction to consider them as ‘permissible set-offs and defences’.*> The High Court fur-
ther noted that a respondent is entitled to raise ‘all defences’ to reduce any award payable to
a claimant, ‘including any claims that could be set off’:>®
Once the plaintiffs had submitted their claim to arbitration the defendant was entitled to raise
all defences that it possessed to the same including any claims that could be set off against any
award made in the plaintiffs’ favour. The arbitrator's jurisdiction to determine the plaintiffs’
claim obviously included a jurisdiction to hear and determine the defendants defence and that
would mean he also had jurisdiction to hear the set-off claims.
10.46 In the result, the High Court held that the tribunal acted within its authority to order the
claimant to pay the respondent's costs in relation to its counterclaims.’ With that said, the
Singapore Court of Appeal observed in 2010 that ‘unfortunately, a great deal of uncertainty
exists in the area of the law of set-off’.5® That remains the state of play in Singapore.®

53 In contrast to the UNCITRAL Rules (1976), the Swiss Rules of Arbitration (2012), Art 21(5) provides
that: “The arbitral tribunal shall have jurisdiction to hear a set-off defence even ifthe relationship out ofwhich the
defence is said to arise is not within the scope of the arbitration clause, or falls within the scope of another arbitration
agreement or forum-selection clause.’ (Emphasis added.)
°4 [2008] 2 SLR(R) 929 (Singapore High Court).
°° VV v VW (n 54) para 7. For further discussion, see Aectra Refining and Manufacturing Inc v Exmare NV,
The New Vanguard [1994] 1 WLR 1634, 1648-50 (English Court of Appeal), where the dichotomy under
English law between an ‘independent set-off and a ‘transaction set-off is considered.
5% VV v VW (n 54) para 45 (emphasis added). cf Sembawang Engineers and Constructors Pte Ltd v Covec
(Singapore) Pte Ltd 2008] SGHC 229 (Singapore High Court) paras 50-53. :
eo Wo VW(n 54).
Cooperatieve Centrale Raiffeisen-Boerenleenbank BA (t/a Rabobank International), Singapore Branch v
Motorola Electronics Pte Ltd (2011) 2 SLR 63 (Singapore Court of Appeal) para 39. ams
59 Hayate Investment Co Ltd v ManagementPlus (Singapore) Pte Ltd (2012) SGHCR 3 para 87.

200
 D. Set-off Defences
a ee ee
Finally, consistent with other common law jurisdictions, Singapore law distinguishes
10.47
between a legal and equitable rights of set-off. As a matter of Singapore law, equitable set-off
arises when the parties’ cross claims are so inseparably connected that it would offend one’s
sense of fairness or justice to allow one claim to be enforced without taking into account the
other. Equitable set-off is a self-help remedy in the sense that it can be used by a party to
deduct its cross-claim against the other party’s claim without waiting for legal proceedings
to be brought.*"
In contrast, legal set-off is not a ‘self-help’ remedy. It must be pleaded as a defence to a 10.48
claim.*? Unlike equitable set-off, there is no need for the cross-claims to be closely connected
and they may be independent.® The claims, however, must be due and payable at the com-
mencement of the arbitration in order to qualify for a legal set-off under Singapore law.

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 11
EARLY DISMISSAL OF CLAIMS
AND DEFENCES
(SIAC RULE 29)

A. Introduction to Early Dismissal C. Rule 29.2—The Early

in International Arbitration 11.03 Dismissal Application 11.37
1. Early dismissal in litigation 11.03 1. Rule 29.2 11.37
2. Early dismissal in arbitration 11.06 2. Requirements 11.37
3. Early dismissal in the SIAC D. Rule 29.3—Discretion of the Tribunal 11.43
Arbitration Rules 11,45 1. Rule29.3 11.43
B. Rule 29.1—Scope 2. Discretion of the Tribunal 11.43
of Early Dismissal 11.18 3. Opportunity to be heard 11.44
1. Rule 29.1 11.19 4. Noautomatic stay of main proceedings 11.46
2. Scope 11.19 E. Rule 29.4—Decision of the Tribunal —_—11.47
3. Standard—Manifest lack 1. Rule 294 11.47
of legal merit or jurisdiction 11.30 2. Reasoned order or award 11.47
4. Burden of proof 11.36 3. Costs 11.52

11.01 This chapter addresses one of the main changes in the 2016 SIAC Arbitration Rules: the
introduction of Rule 29 on early dismissal of claims and defences. The 2010 SIAC Arbitration
Rules did not contain any equivalent provision.
11.02 The chapter begins with an introduction to early dismissal mechanisms in arbitration gener-
ally, in part A. It then addresses the scope of Rule 29 in part B, followed by an examination
of the procedural aspects of Rule 29 in part C. Parts D and E examine the discretion of the
tribunal in deciding whether to grant a Rule 29 application and the tribunal’s decision at the
conclusion of the Rule 29 proceedings, respectively.

A. Introduction to Early Dismissal in International Arbitration

1. Early dismissal in litigation
11.03 Early dismissal of claims and defences is a mechanism for the early resolution of proceedings
in full or in part. The aim is to save time and cost by bringing proceedings or claims that have
an obvious outcome to an end as early as possible.' However, as with most other procedural

" SIAC Press Release, ‘Highlights of the SIAC Rules 2016’, 30 June 2016, 1, available at <http://www.siac.
org.sg/images/stories/articles/rules/SIAC%20Rules%202016_Cheat%20Sheet_30June201(accessed
6.pdf>
16 January 2017).

202
 A. Introduction to Early Dismissal in International Arbitration

mechanisms, the availability of applications for early disposition of claims and defences also
entails the risk of delay and tactical use and abuse.’
Early dismissal mechanisms have a long history in common law litigation.? In the 11.04
United States, for example, there are two main procedural devices: motions to dis-
miss and summary judgment motions, together referred to as dispositive motions.‘
A motion to dismiss, which is usually filed as the defendant’s first pleading, assumes
that the facts pleaded by the plaintiff
are true but argues that the complaint fails to state
a claim upon which relief can be granted. A motion for summary judgment is usually
filed after the disclosure (in the US, ‘discovery’) phase of the litigation and requires
a showing that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.> This distinction—between failure to state a
claim known to law and failure of evidence—is an important one, as will be seen in the
sections that follow.
Similar mechanisms exist in litigation in England and Wales, Singapore, and elsewhere.*® 11.05

2. Early dismissal in arbitration

Early dismissal of claims and defences has also been available in domestic arbitration in 11.06
some jurisdictions for some time. For example, in US domestic arbitration, in 2000, the US
Uniform Arbitration Act was amended to include a short provision stating that arbitrators
have the power to summarily dispose of claims.’
Some arbitral institutions also have express provisions allowing early dismissal of proceed- 11.07
ings in their domestic arbitration rules. For example, the 2002 SIAC Domestic Arbitration
Rules gave parties the right to apply for a summary award ‘if a party considers that there is
no valid defence to its claim or any substantial part of its claim’.8 The American Arbitration
Association (AAA) has introduced express authority for arbitrators to hear and grant dis-
positive motions in several of its specialized domestic arbitration rules, including the 2006
AAA Employment Arbitration Rules? and the 2013 AAA Commercial Arbitration Rules
and Mediation Procedures.'? JAMS also has incorporated a similar provision in its domestic
arbitration rules.

2 Queen Mary University of London's School of International Arbitration and White & Case, ‘2015
International Arbitration Survey: Improvements and Innovations in International Arbitration’ (2015) 25.
Summary disposition of claims was only ranked 12th out of 15 instruments to control time and cost in arbitra-
tion with 40 per cent viewing it as effective, 33 per cent as neutral and 27 per cent as not effective.
3 AG Ferris and WL Biddle, ‘The Use of Dispositive Motions in Arbitration’ in AAA Handbook on
sarbieenons Eeciie (Juris 2010) 191, 194.
4 eg US Federal Rules of Civil Procedure, Rules 12, 56; JWaincymer, Procedure and Evidence in International
Arbitration (Kluwer Law International 2012) 676; A Goldsmith, “Trans-Global Petroleum: “Rare Bird” or
i in the Development of Early Merits-Based Claim-Vetting?’ (2008) 26(4) ASA Bull 667, 668.
5 C Mouawad and E Silbert, ‘A Case for Dispositive Motions in International Commercial Arbitration’
(2015) 2(1) BCDR Int Arb Rev 77, 78.
6 eg UK Civil Procedure Rules, Rules 3.4, 24; Singapore Rules of Court, Orders 14, 18; Hong Kong Rules
of the High Court, Cap 4A, Order 14.
7 AG Ferris and WL Biddle, “The Use of Dispositive Motions in Arbitration’ (n 3) 192-93.
8 2002 SIAC Domestic Arbitration Rules,3 pele
9 2006 AAA Arbitration Rules, 27.
10 AAA oat. frredb Rules and Mediation Procedures, Rule 33. Note that the AAA’s inter-
national arbitration rules (as opposed to domestic arbitration)—the 2014 ICDR International Dispute
Resolution Procedures—do not contain any explicit provisions on dispositive motions.
203
 Early Dismissal of Claims and Defences (SIAC Rule 29)

11.08 With respect to international arbitration, ICSID was the first major international arbitral
institution to introduce a provision on early dismissal. Rule 41 (5) of the ICSID Arbitration
Rules states:
Unless the parties have agreed to another expedited procedure for making preliminary objec-
tions, a party may, no later than 30 days after the constitution of the Tribunal, and in any event
before the first session of the Tribunal, file an objection that a claim is manifestly without legal
merit. The party shall specify as precisely as possible the basis for the objection. The Tribunal,
after giving the parties the opportunity to present their observations on the objection, shall,
at its first session or promptly thereafter, notify the parties of its decision on the objection.
The decision of the Tribunal shall be without prejudice to the right of a party to file an objec-
tion pursuant to paragraph (1) or to object, in the course of the proceeding, that a claim lacks
legal merit.
11.09 Rule 41(5) of the ICSID Arbitration Rules was adopted in 2006 and provides that tribunals
may at an early stage of the case be asked to dismiss all or part of the claim on an expedited
basis.'’ From 2006 to 2016, Rule 41(5) was invoked in 25 cases, which is about 5 per cent
of the total number of registered ICSID arbitration cases during that period.'* Of these 25
applications, two applications were successful in dismissing the entire claim and three appli-
cations were successful in having claims dismissed in part.'?
11.10 Recently, several arbitral institutions have amended their international commercial arbitra-
tion rules to include early dismissal provisions. This has been done in response to the oft-
repeated criticism of international arbitration that it sometimes fails to live up to its potential
for expeditious resolution of disputes.
11.11 In response to this criticism, JAMS adopted an early dismissal provision in the 2016 JAMS
International Arbitration Rules, which provides that:
The Tribunal may permit any party to file a Motion for Summary Disposition of a particular
claim or issue, either by agreement of all interested parties or at the request of one party, pro-
vided other interested parties have reasonable notice to respond to the request."
11.12 More recently, the Stockholm Chamber of Commerce incorporated a summary procedure
in Article 39 of the 2017 SCC Arbitration Rules and Article 40 of the 2017 SCC Rules
for Expedited Arbitrations. Unlike most other arbitration rules, the 2017 SCC Arbitration

"" ICSID Secretariat Discussion Paper, ‘Possible Improvements of the Framework for ICSID Arbitration’,
22 October 2004; ICSID Secretariat Working Paper, ‘Suggested Changes to the ICSID Rules and Regulations’,
12 May 2005.
"2 ICSID Secretariat, ‘Decisions on Manifest Lack of Legal Merit’, available at <https://icsid.worldbank.
org/en/Pages/process/Decisions-on-Manifest-Lack-of-Legal-Merit.aspx>(accessed 11 October 2017); ICSID
Secretariat, “The ICSID CaseloadStatistics (Issue 2016-2)’, available at <https:// icsid.worldbank.org/en/Pages/
resources/ICSID-Caseload-Statistics.aspx> (accessed 16 January 2017).
'3 ICSID Secretariat, ‘Decisions on Manifest Lack of Legal Merit’, available at <https://icsid.worldbank.
org/en/Pages/process/Decisions-on-Manifest-Lack-of-Legal-Merit.aspx> (accessed 16 January 2017); ICSID
Secretariat, “The ICSID CaseloadStatistics (Issue 2016-2)’, available at <https:// icsid.worldbank.org/en/Pages/
resources/ICSID-Caseload-Statistics.aspx> (accessed 16 January 2017). The cases in which the applications
were successful are Global Trading Resource Corp and Globex International Inc v Ukraine (ICSID Case No ARB/
09/11) and RSM Production Corporation and others v Grenada (ICSID Case No ARB/ 10/6). The cases in which
the applications were partially successful are Trans-Global Petroleum, Inc v The Hashemite Kingdom ofJordan
(ICSID Case No ARB/07/25), Emmis International Hold BV, ing
Emmis Radio Operatin BV, and MEM
g Magyar
Electronic Media Kereskendelmi Es Szolgdltaté KFT v Hungary (ICSID Case No ARB/12/2), and Accession
Mezzanine Capital LP and Danubius Kereskedéhdz Vagyonkezelé Zrt v Hungary ((CSID Case No ARB/1 2/3).
4 2016 JAMS International Arbitration Rules, Art 26.

204
 A. Introduction to Early Dismissal in International Arbitration

Rules provide detailed guidance on the scope, application, and the discretion of the tribunal
in the summary procedure.'®
In the context of ad hoc international arbitration, the UNCITRAL Arbitration Rules do not 11.13
expressly address dispositive motions. An argument can be made, however, that Article 17.1
of the UNCITRAL Arbitration Rules provides a basis for tribunals to dispose of a claim that is
manifestly without legal merit.'® Article 17.1 provides:
Subject to these Rules, the arbitral tribunal may conduct the arbitration in such manner as it con-
siders appropriate, provided that the parties are treated with equality and that at an appropriate
stage of the proceedings each party is given a reasonable opportunity of presenting its case. The
arbitral tribunal, in exercising its discretion, shall conduct the proceedings so as to avoid unnecessary
delay and expense and to provide a fair and efficient process for resolving the parties dispute. (Emphasis
added.)

Similar provisions giving tribunals wide latitude in the conduct of proceedings are found inthe 11.14
rules of other major arbitral institutions, including Article 22 of the 2012 ICC Arbitration Rules
and Article 14.4 of the LCIA’s Arbitration Rules."”

3. Early dismissal in the SLAC Arbitration Rules

In 2016, SIAC adopted Rule 29 on the early dismissal of claims and defences. SIAC was 11.15
the first major international arbitration centre to introduce a detailed procedure for the
early dismissal of claims and defences in the international commercial arbitration context.'®
(The SIAC Rules pre-date the amendments to the SCC Rules by about six months.)

'S 2017 SCC Arbitration Rules, Rule 39 provides:

(1) A party may request that the Arbitral Tribunal decide one or more issues of fact or law by way of
summary procedure, without necessarily undertaking every procedural step that might other-
wise be adopted for the arbitration.
(2) A request for summary procedure may concern issues of jurisdiction, admissibility or the merits.
It may include, for example, an assertion that:
(i) anallegation of fact or law material to the outcome of the case is manifestly unsustainable;
(ii) even if the facts alleged by the other party are assumed to be true, no award could be ren-
dered in favour of that party under the applicable law; or
(iii) any issue of fact or law material to the outcome of the case is, for any other reason, suitable
to determination by way of summary procedure.
(3) The request shall specify the grounds relied on and the form of summary procedure proposed,
and demonstrate that such procedure is efficient and appropriate in all the circumstances of
the case. |
(4) After providing the other party an opportunity to submit comments, the Arbitral Tribunal
shall issue an order either dismissing the request or fixing the summary procedure in the form it
deems appropriate.
(5) In determining whether to grant a request for summary procedure, the Arbitral Tribunal shall
have regard to all relevant circumstances, including the extent to which the summary procedure
contributes to a more efficient and expeditious resolution of the dispute.
(6) Ifthe request for summary procedure is granted, the Arbitral Tribunal shall seek to make its
order or award on the issues under consideration in an efficient and expeditious manner having
regard to the circumstances of the case, while giving each party an equal and reasonable oppor-
tunity to present its casepursuant to Art 23(2).
'6 eg M Potesti and M Sobat, ‘Frivolous Claims in International Adjudication: A Study of ICSID Rule
41(5) and of Procedures of Other Courts and Tribunals to Dismiss Claims Summarily’ (2012) 3(1) J Int'l
Settlement 28. |
ICC Rules Rules, Art 14.4.
Art,22; LCIA Arbitration
boned
#8 Steud IAC miafinance no2017SIACIneen
Arbitration (see Chapter 19). For anoverview ofsummary dismissal ofclaims before international courts
205
 Early Dismissal of Claims and Defences (SIAC Rule 29)

11.16 Rule 29 makes it explicit that tribunals applying the new SIAC Arbitration Rules have the
power to hear motions for early dismissal. There has been a debate as to whether tribunals
need express powers to render dispositive motions. There is an argument that a tribunal's
general power to conduct the proceedings as it considers appropriate, under provisions such
as Rule 19.1 of the SIAC Arbitration Rules," is sufficient.2° However, research suggests that
there is at least a perceived reluctance by tribunals to do so for fear of the losing party chal-
lenging the award on the basis that the party did not have the chance to present its case in
full—a phenomenon that has been labelled due process paranoia.*' Thus, it is considered
that expressly empowering tribunals to hear dispositive motions may encourage them to
make use of this procedure more often.?4
41.17 Tribunals applying Rule 29 of the SIAC Arbitration Rules may seek guidance from the juris-
prudence on Rule 41(5) of the ICSID Arbitration Rules. Rule 29 of the SIAC Arbitration
Rules is more similar to its equivalent in the ICSID Arbitration Rules than the AAA and
JAMS arbitration rules mentioned above. Both Rule 29 of the SIAC Arbitration Rules and
Rule 41(5) of the ICSID Arbitration Rules are based on a ‘manifestly without legal merit’
standard. In contrast, the AAA and JAMS rules provide merely for the availability of disposi-
tive motions more generally. For this reason, in interpreting Rule 29, this chapter includes
references to relevant ICSID jurisprudence.

B. Rule 29.1—Scope of Early Dismissal

11.18 Rule 29.1 defines the basis on which a party may apply for early dismissal.

1. Rule 29.1

A party may apply to the Tribunal for the early dismissal of a claim or defence on the basis that:
a. aclaim or defence is manifestly without legal merit; or
b. aclaim or defence is manifestly outside the jurisdiction of the Tribunal.

and tribunals, see M Potesta and M Sobat, ‘Frivolous Claims in International Adjudication: A Study of ICSID
Rule 41(5) and of Procedures of Other Courts and Tribunals to Dismiss Claims Summarily’ (2012) 3(1) J Int'l
Dispute Settlement 137, 139-45, 159-67.
'9 See Chapter 9.
20 J Gill, ‘Applications for the Early Disposition of Claims in Arbitration Proceedings’ in AJ van den Berg
(ed), 50 Years ofthe New York Convention: ICCA International Arbitration Conference, ICCA Congress Series,
Vol 14 (Kluwer Law International 2009) 513, 521—22; Waincymer, Procedure and Evidence (n 4) 676-78;
Goldsmith, “Early Merits-Based Claim-Vetting’ (n 4) 681-82. See also in favour of an inherent power
to
dismiss proceedings on a summary basis C Brown and S Puig, “The Power of ICSID Tribunals
to Dismiss
Proceedings Summarily: An Analysis of Rule 41(5) of the ICSID Arbitration Rules’ (2011)
10(2), The Law
re:ee ofInternational Courts and Tribunals 227, 258; Mouawad and Silbert, ‘Dispositive
Motions’ (n
21 Queen Mary University of London’s School of International Arbitration and White
& Case,
F~~eecine tiseArbitration Survey: Improvements and Innovations in International
Arbitration’
Goldsmith, ‘Early Merits-Based Claim-Vetting’ (n 4) 682 (‘generalized recommendations and recog-
nitions of procedural flexibility arguably fall short of the ‘cover’ typically needed to convin
ce a tribunal to
permit a full-blown motion to dismiss before any evidence is submitted’); Mouawad and
Silbert, ‘Dispositive
seoe ace5) 79; G Born, International Commercial Arbitration (2nd edn, Kluwer
Law International 2014)

206
 B. Rule 29.1—Scope of Early Dismissal

2. Scope
a. Claims and defences
Rule 29.1 expressly allows for the dismissal of claims as well as defences. Thus, both claim- 11.19
ants and respondents may use the early dismissal mechanism. This aspect distinguishes Rule
29 from Rule 41(5) of the ICSID Arbitration Rules which, on its face, encompasses only
objections to claims.

b. Jurisdiction and legal merits

Applications for early dismissal may be based on: (a) lack of legal merit; and/or (b) lack of 11.20
jurisdiction. The language of Rule 29 makes it clear that its scope includes objections to the
tribunal’s jurisdiction as well as merits (in contrast to the wording of Rule 41(5) of the ICSID
Arbitration Rules, which does not expressly include jurisdictional objections).
c. Legal merit
Rule 29.1 requires a lack of /ega/ merit. This raises the question as to whether issues of fact, 11.21
not law, are relevant to Rule 29 proceedings. This issue remains to be clarified in practice.
Arbitral decisions addressing this question in the context of Rule 41(5) of the ICSID 11.22
Arbitration Rules may provide some guidance. ICSID tribunals make clear that the relevant
enquiry is limited to questions of legal and not purely factual merit. The drafting history of
Rule 41(5) also reveals that the adjective ‘legal’ was introduced in the final version of the
provision ‘to avoid inappropriate discussions on the facts of the case at that stage’
.?3
What is less clear is the extent to which a tribunal should assume as true the facts adduced by 11.23
the party resisting early dismissal, or whether the facts should be subject to more in-depth
scrutiny; and if so, what standard of scrutiny should apply.
In Trans-Global v Jordan, the tribunal recognized that the examination of legal merit may be 11.24
intertwined with factual issues:?4
At this early stage of these proceedings, without any sufficient evidence, the Tribunal is in no
position to decide disputed facts alleged by either side in a summary procedure. Nonetheless,
the Tribunal recognizes that it is rarely possible to assess the legal merits of any claim without
also examining the factual premise upon which that claim is advanced. *°
The Trans-Global tribunal concluded that with regard to disputed facts relevant to the legal 11.25
merits of a claim, a tribunal ‘need not accept at face value any factual allegation which the
tribunal regards as (manifestly) incredible, frivolous, vexatious or inaccurate or made in bad
faith; nor need a tribunal accept a submission dressed up as a factual allegation’.2© However,

23 Brandes v Venezuela (ICSID Case No ARB/08/3) paras 56-61, 70; Trans-GlobalvJordan (n 13) paras
76-79, 97; referring to eg A Antonietti, “The 2006 Amendments to the ICSID Rules and Regulations and the
Additional Facility Rules’ (2006) 21 ICSID Rev 427, 441-42; ICSID Secretariat Discussion Paper, ‘Possible
of the Framework for ICSID Arbitration’ (n 11); ICSID Secretariat Working Paper, ‘Suggested
Changes to the ICSID Rules and Regulations’ (n 11). See also MOL Hungarian Oil and Gas Company PLC
v Republic ofCroatia (ICSID Case No ARB/13/32) para 44, PNG v Papua New Guinea (ICSID Case No
ARB/13/33) para 90; RSM vGrenada (n 13) para 6.1.1; C H Schreuer, The JCSID Convention: ACommentary
(5th edn, CUP 2009) Art 41, para 98; Waincymer, Procedure and Evidence (n 4) 682; Goldsmith, ‘Early Merits-
Based Claim-Vetting’ (n 4) 671.
24 Trans-Glo Jordan (n 13) para 97. See also Brandes v Venezuela (n 23) paras 59-60.
vbal
Jordan (n 13) para 97. See also Brandeis v Venezuela (n 23) paras 59-60.
obal
25 Trans-Glv
vJordan (n 13) para 105.
26 Trans-Global

207
 Early Dismissal of Claims and Defences (SIAC Rule 29)

this does not mean that a tribunal ‘should otherwise weigh the credibility or plausibility of a
disputed factual allegation
’.?’

11.26 The tribunal in RSM v Grenada agreed with this approach, and added thar: ‘it is appropriate
that a claimant’s Request for Arbitration be construed liberally and that, in cases of doubt of
uncertainty as to the scope of aclaimant’s allegation(s), any such doubt or uncertainty should
be resolved in favour of the claimant’.
11.27 The tribunal in Brandeis v Venezuela adopted a more nuanced approach. The Brandeis tribu-
nal distinguished between different categories of facts based on the role these facts and the
proof of their existence play at different stages of the proceedings. It then noted that different
approaches should be adopted for each category of facts.?? More specifically, the Brandeis
tribunal separated the facts into (a) facts which are the basis for a finding of responsibility,
(b) facts which are the basis for a finding of jurisdiction, and (c) facts which, even if proven,
cannot be the basis for a finding of jurisdiction or responsibility. The first category of facts,
the tribunal said, has to be accepted as proven at the Rule 41(5) objection stage and then,
at the merits stage, their existence will be ascertained.®° If the facts are facts on which the
jurisdiction of the tribunal rests (the second category), the tribunal should decide those facts,
if contested between the parties, and cannot accept them as alleged by the claimant.?' As to
the third set of facts, the tribunal has to accept prima facie the plausible facts as presented by
the claimants.32
11.28 It remains to be seen how SIAC tribunals applying Rule 29 will approach this issue. Subtle
differences already can be seen in ICSID jurisprudence, which are capable of affecting the
outcomes in individual cases. In addition, the differences between the SIAC and ICSID rules
have to be taken into account.
11.29 For example, a key difference between the two sets of rules which may affect the scope of the
early dismissal procedure is the timing of the early dismissal proceedings. Rule 41(5) of the
ICSID Arbitration Rules stipulates that the early dismissal procedure should be used within
30 days of the constitution of the tribunal and in any event, before the first session of the
tribunal. There is no such time limitation in Rule 29 of the SIAC Arbitration Rules. Thus, a
SIAC tribunal may be presented with an early dismissal application later in the proceedings,
when the factual record is well-developed. In such a case, it may be that, if presented with
such an application later in the proceedings, a SIAC tribunal will subject the facts to a more
in-depth scrutiny than ICSID tribunals have done.

3. Standard—Manifest lack of legal merit or jurisdiction

11.30 The basis for an application under Rule 29.1 is that a claim or defence is ‘manifestly without
legal merit’ or that it is ‘manifestly outside the jurisdiction of the Tribunal’, The rule does not
provide a definition of the standard of a ‘manifest lack’.
11.31 In the ICSID context, Professor Schreuer has described ‘manifest’ in the following terms:

Sr
r nan e UNL iil
27 Trans-Global v Jordan (n 13) para 105.
28 RSM vGrenada (n 13) para 6.1.3.
29 Brandeis v Venezuela (n 23) para 65.
30 Brandeis v Venezuela (n 23) para 66,
31 Brandeis v Venezuela (n 23) para 68.
% Brandeis v Venezuela (n 23) para 69,

208
 B. Rule 29. 1—Scope of Early Dismissal

[i)m accordance with its dictionary meaning, ‘manifest may mean plain’, ‘clear’, ‘obvious’, ‘evi-
dent’ and easily understood or recognized by the mind. Therefore, the manifest nature of an
excess of powers is not necessarily an indication ofits gravity. Rather, it relates to the ease with
which it is perceived’).33
Similarly, the tribunal in Trans-Global v Jordan, applying Rule 41(5), held: 11.32
(T]he ordinary meaning of the word [‘manifest’] requires the respondent to establish its objection
clearly and obviously, with relative ease and despatch. The standard is thus a high one.*4

The tribunal in MOL v Croatia further explained that ‘manifest legal merit’ ‘plainly envisages a 11.33
claim that is so obviously defective from a legal point of view that it can properly be dismissed
outright’. The tribunal contrasted that to a standard for a claim that ‘lacks legal merit’ (as
opposed to ‘manifestly’ lacking legal merit). The MOL tribunal held the ‘lacks legal merit’
standard would require more elaborate arguments or factual inquiry and must be made subject
of a regular defence on the merits.3¢
The main observation from these authorities is that the standard is a high one. This is justified 11.34
given that early dismissal has the potential to resolve the dispute in a final and binding way in
favour of the applicant.
Several examples serve to illustrate the standard as applied in the ICSID context: 11.35
a) Global Trading and Globex International v Ukraine was dismissed because the tribunal found
there was no qualifying investment.” Global Trading and Globex International, two US
companies, brought a claim against Ukraine under the US-Ukraine BIT over non-payment
of purchase and sale contracts.3* The tribunal found that the purchase and sale contracts at
issue were pure commercial transactions and therefore did not qualify as an investment for
the purposes of Article 25 of the ICSID Convention.?? The tribunal accordingly decided
that the claims were manifestly without legal merit, within the meaning of Rule 41(5) of the
ICSID Arbitration Rules.
b) Ansung v China was dismissed by an ICSID tribunal in its early stages on the basis that
the claim was brought out of time.*? Ansung, a South Korean investor, brought a claim
against China under the South Korea-China BIT. Article 9(7) of the South Korea-China
BIT provided that aclaim could not be brought if it was more than three years after the date
on which ‘the investor first acquired, or should have first acquired, the knowledge that the
investor had incurred loss or damage’.*' China raised the Rule 41(5) objection on the basis
that Ansung’s claim was out of time pursuant to the terms of the China-Korea BIT. 4? The
tribunal upheld China’s objections and dismissed the arbitration.*?

33 C Schreuer, JCSID Convention (n 23) para 135.

4 Trans-Global v Jordan (n 13) para 88; see also Globex v Ukraine (n 13) para 35; MOL v Croatia (ICSID
Case No ARB/13/32) paras 25, 44-45; PNG v Papua New Guinea (n 23) para 88; RSM v Grenada (n 13) paras
6.1.1-6.1.2; Brandes v Venezuela (n 23) para 63; see also Markert, ‘Preliminary Objections’ (pursuant to ICSID
Arbitration Rule 41/5—soon to become the ‘Preliminary Objection of Choice’ (2012) 9(3) Transnational
ae ew t) 12-13.
MOL vCroatia (n 34) para 44.
36 MOL v Croatia (n 34) para 44.
37 Global Trading andGlobex International v Ukraine (n 13).
38 Global Trading and Globex InternationalvUkraine(n 13) para5.
39 Global Trading and Globex InternationalvUkraine (n 13) para 57.
49 Ansung v China (ICSID Case No ARB/14/25) para 73.
4" Ansung v China (n 40) para 74.
42 Ansung v China (n 40) para 73.
43 Ansung v China (n 40) para 58. _
 Early Dismissal of Claims and Defences (SIAC Rule 29)

c) RSM v Grenadawas dismissed on res judicata grounds. The claimants, US nationals, brought
claims against Grenada for breach of anumber ofobligations under the Grenada-US BIT in
relation to a petroleum exploration agreement (the Agreement). Several years prior to this
arbitration, the claimants brought and lost claims against Grenada under the Agreement,
which also provided for arbitration under the ICSID Arbitration Rules.*° Grenada raised
the Rule 41(5) objections, asserting that the legal and factual contentions on which the
present claims depended were already decided in the prior arbitration.*® The claimants con-
tended that there was nothing inconsistent with finding that Grenada complied with the
terms of its Agreement, yet violated the Grenada-US BIT.4” The tribunal found that because
the claims the claimants brought were considered and decided by a prior tribunal, they were
manifestly without legal merit.** It dismissed the claims in their entirety.

4. Burden of proof
11.36 While the burden of proof is not expressly addressed in Rule 29, the general principle that
the applicant has the burden to prove its case should apply, ie the party seeking early dismissal
bears the burden of establishing a manifest lack of legal merit or jurisdiction.*®

C. Rule 29.2—The Early Dismissal Application

1. Rule 29.2
An application for the early dismissal of a claim or defence under Rule 29.1 shall state in detail
the facts and legal basis supporting the application. The party applying for early dismissal
shall, at the same time as it files the application with the Tribunal, send a copy of the applica-
tion to the other party, and shall notify the Tribunal that it has done so, specifying the mode
of service employed and the date of service.

2. Requirements
11.37 The applicant is required to set out the facts and legal arguments on which it bases its applica-
tion in detail to enable the tribunal to rule on the application. This provision also encourages
parties to limit their reasoning to the facts and legal arguments ‘supporting the application’
and not to overburden the Rule 29 proceedings with other aspects of the main proceedings.
That is consistent with the overall purpose of the provision to save time and costs.
Rule 29.2 furthermore details the necessary copies of the application to be filed—one for the
tribunal and one for the other party.
Notably, as mentioned above, Rule 29 contains no time limit for the application for early
dismissal. It follows that such an application can be made at any stage of the proceedings.
The more difficult question is whether an application can be made on the basis of a failure
ofevidence at a relatively later stage of the proceedings, following exchange of witness state-
ments and/or document disclosure, as opposed to a failure to state a claim known to the law.

icine
tii
“4 RSMv Grenada (n 13) para 1.4.1,
“5 RSMv Grenada (n 13) para 5.1.2.
46 RSMv Grenada (n 13) para 4.1.1.
“” RSMv Grenada (n 13) para 5.1.2.
“8 RSM v Grenada (n 13) para 7.2.1.
“ Potesta and Sobat, ‘Frivolous Claims’ (n 16) 158.

210
 D. Rule 29.3—Discretion of the Tribunal

(An application based purely on failure to state a claim known to the law is, of course, avail-
able early in the proceedings, before any evidence is adduced.) Although there is no express
timing bar on an application for early dismissal, an application made after written submis-
sions and the exchange of evidence can be expected to face at least two hurdles.
The first is the reference to ‘/egal merit’ in the standard for dismissal, which implies afocus 11.41
on failure to state a claim known to the law, as opposed to failure to adduce evidence in
support of that claim. Nonetheless, in some cases, legal and factual issues necessarily will be
intertwined, perhaps supporting an application after exchange of evidence.
Second, the rule refers expressly to ‘early dismissal’. Thus, tribunals are likely to take into 11.42
account the stage of the proceedings when deciding whether to grant the application under
Rule 29.3. The merits of early dismissal may well be more difficult to establish the closer the
proceedings are to their conclusion in the ordinary course: an application made on the eve of
a merits hearing would, if successful, achieve fewer cost and time savings than an application
made upon receipt of a Request for Arbitration.

D. Rule 29.3—Discretion of the Tribunal

— . Rule 29.3

The Tribunal may, in its discretion, allow the application for the early dismissal of a claim or
defence under Rule 29.1 to proceed. If the application is allowed to proceed, the Tribunal shall,
after giving the parties the opportunity to be heard, decide whether to grant, in whole or in
part, the application for early dismissal under Rule 29.1.

2. Discretion of the Tribunal

This provision gives the tribunal wide discretion whether or not to allow the application 11.43
under Rule 29.1 to proceed. This is the threshold step in the process, with the tribunal
first determining whether to entertain the application. Tribunals should make use of this
discretion to prevent applications for early dismissal from proceeding if they are obviously
unfounded or merely aim at delaying or complicating the proceedings.°°

3. Opportunity to be heard
Rule 29.3 requires expressly that the parties be afforded the opportunity to be heard once the 11.44
application to proceed (as opposed to early dismissal itself) is granted.
The rule does not specify whether ‘the opportunity to be heard’ requires both written 11.45
submissions and a hearing.*' Rather, it leaves that to the discretion of the tribunal.*?

50 Cf SIAC Press Release (n 1) 2; Goldsmith, ‘Early Merits-Based Claim-Vettirig’(n4) 672.

51 ICSID tribunals have generally allowed for one or two rounds of written submissions. See Markert,
‘Preliminary Objections’ (n 34) 10. ICSID tribunals also have a strong inclination towards allowing parties to
present their arguments not just in written form but also orally. See Globex v Ukraine (n 13) para 33; Markert,
‘Preliminary Objections’ (n 34) 10-11; Trans-Global v Jordan (n 13) para 92 (‘[i]t would therefore be a grave
injustice ifa claimant was wrongly driven from the judgment seat by afinal award under Art 41(5), with no
opportunity to develop and present itscase under the written and oral procedures prescribed by[...] theICSID
Arbitration Rules’); Potestaand Sobat, ‘Frivolous Claims’ (n 16) 151; Brown and Puig, ‘Analysisof Rule 41(5)
(n 20) 253-55; Mouawad and Silbert, ‘Dispositive Motions’ (n 5) 93-94.
2 arbitration law also requires that each party be given a full opportunity topresent its case—
1985 UNCIT RAL
Model Law, Art 18 read with LAA, s 3(1). Despite the broad wording, however, the right

211
 Early Dismissal ofClaims and Defences (SIAC Rule 29)

4. No automatic stay of main proceedings

11.46 Rule 29 does not expressly provide that an application for early dismissal entails a stay of
the main proceedings.53 Nevertheless, the power to order a stay of the main proceedings is,
properly understood, within the tribunal’s general power under Rule 19.1 to conduct the
arbitration as it considers appropriate. * In deciding whether or not to order a stay, the tribu-
nal is likely to take into account the specific circumstances of the case, including the current
status of the main proceedings, including the imminence ofother deadlines.

E. Rule 29.4—Decision of the Tribunal

1. Rule 29.4

If the application is allowed to proceed, the Tribunal shall make an order or Award on the
application, with reasons, which may be in summary form. The order or Award shall be made
within 60 days of the date of filing of the application, unless, in exceptional circumstances,
the Registrar extends the time.

2. Reasoned order or award

11.47 This provision requires the tribunal to issue its decision within sixty days of the date of the
application. This time limit can be extended only in exceptional circumstances. The bar for
a time extension is likely to be high given the aim of Rule 29 to provide fora simple and fast
way to resolve the dispute.
The tribunal is also required to give reasons for its decisions, which can be in summary form.
The reasons may be less detailed if the application is rejected, given that the issues will be
assessed in the main proceedings.
11.49 The provision requires the tribunal to issue its decision in the form of an order or an award.
Rule 29 does not state in what situations the tribunal shall render an award or an order.** The
distinction is important since the general rule is that awards, but not orders, can be enforced
under the New York Convention and are subject to set aside proceedings before relevant

to be heard is not unlimited; it only includes issues that are relevant to the case—Soh Beng Tee & Co Pre Lid v
Fairmount Development PreLtd [2007] 3 SLR 86; [2007] SGCA 28 (Singapore Court of Appeal) para 64. —
arbitral rules and institutions adopt a similar approach. See with regard to the parallel question of
Goldsmith, “Early Merits-Based Claim-Vetting’ (n 4) 683-85. Cf also M Collins, ‘Summary Disposition in
International Arbitration’ in A J van den Berg (ed), 50 Years of the New York Convention: ICCA International
Arbitration Conference, ICCA Congress Series, Volume 14 (Kluwer Law International 2009) 532-533, describing
a general trend using the example of the revised Art 15(1) UNCITRAL Arbitration Rules; see also
and Silbert, ‘Dispositive Motions’ (n 5) 83-84. Thus, a party's right to be heard in Rule 29 proceedings would
likely be limited to the dispositive issues on which the application is based.
53 Under Rule 41(5) ICSID Arbitration Rules, the main proceedings continue torun, Markert, ‘Preliminary
niet 24.

= SeaOaaD Combine ta S5cAusdtspelc 10

56 ICSID tribunals that have examined applications under Rule 41(5) ofthe ICSID Arbitration Rules have
consistently rendered awards when the applications have been for the entire claim (which concluded
the proceedings), but rendered decisions rather than awards when the have been or only
partially granted the at least partially, continue). See ICSID Secretariat, on
Lack ofLegal Merit’, 2017, available at licsid.
Manifest-Lack-of-Legal- accessed
on 16 January 2017).
 E. Rule 29.4—Decision ofthe Tribunal
<<
national courts.*” Awards are also subject to certain formal requirements, including approv
al
by the SIAC Registrar under Rule 32.
Although there are no universally accepted definitions of awards and orders in the New York
11.50
Convention, a basic requirement for an award in international arbitration is that it must
resolve a substantive issue, not a procedural matter, and must be final and binding.** Both
the IAA and AA also define an ‘award’ as ‘any decision of the tribunal on the substance of the
dispute’.”
Even if the tribunal issues an order, not an award, orders are enforceable in Singapore. The 11.51
IAA and AA provide thar a tribunal’s orders are enforceable with the leave of the High Court
in the same manner as if they were orders made by a court. Should such leave be granted
by the High Court, a failure to comply with a tribunal’s order may amount to contempt of
court. In addition, a tribunal may enforce its orders by imposing costs on the offending party.

3. Costs
Rule 29 is silent as to costs. 11.52
If the tribunal renders an award (as opposed to an order), Rule 35 of the SIAC Arbitration 11.53
Rules (which applies to awards) prescribes that the tribunal, unless otherwise agreed by the
parties, shall include a decision on the costs of theproceedings in the award.
If the tribunal renders an order that the early dismissal application is entirely or partially 11.54
rejected, and the proceedings continue, the tribunal may choose to make a decision on the
costs at a later stage.*’

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 12
THE POWERS OF THE TRIBUNAL
(SIAC RULES 27 AND 31)

A. Rule 27—Additional Powers of 11. Rule 27(i) 12.26

the Tribunal 12.02 12. Rule 27(j) 12.29
1. Prescribed powers of a SIAC tribunal 12.02 13. Rule 27(k) 12.41
2. Rule 27 (introductory paragraph) 12.03 14. Rule 27(1) 12.45
3. Rule 27(a) 12.05 15. Rule 27(m) 12.48
4. Rule 27(b) 12.08 16. Rule 27(n) 12.50
5. Rule 27(c) 12.09 17. Rule 27(0) 12.53
6. Rule 27(d) 12.12 B. Rule 31—Applicable Law, Amiable
7. Rule 27(e) 12.15 Compositeur, and ExAequo et Bono 12.55
8. Rule 27(f) 12.19 1. Rule 31.1 12.56
9. Rule 27(g) 12.23 2. Rule 31.2 12.75
10. Rule 27(h) 12.25 3. Rule 31.3 12.80

12.01 Some of the key powers of a SIAC tribunal are addressed in this chapter. Part A covers the express
tribunal powers enumerated in Rule 27. The power of the tribunal to determine the law applic-
able to the substance of the dispute and the interpretation of the arbitration agreement, and the
power to decide a dispute on equitable grounds pursuant to Rule 31, are addressed in part B

A. Rule 27—Additional Powers of the Tribunal

1. Prescribed powers of a SIAC tribunal
12.02 SIAC has followed the lead of the LCIA in its grouping of tribunal powers in a single rule.' The
enumeration of powers in Rule 27, however, is not exhaustive. Other express powers are pre-
scribed throughout the SIAC Rules,” and SIAC tribunals also possess certain inherent powers.?

1 See LCIA Rules (2014), Art 22, and earlier editions of the LCIA Rules on which Rule 27 of the SIAC Rules
is modelled. In contrast, the ICC, HKIAC, and KLRCA, for instance, do not list the powers of a tribunal in a
— section of the rules.
For instance, Rule 19 (the tribunal’s power to issue orders relating to the conduct of proceedings); Rules 20.6 to
20.9 (the tribunal’s powers relating to submissions); Rule 21 (the tribunal's power to determine the seat and place of
hearings); Rule 22 (the tribunal’s power to determine the language of the arbitration); Rule 24 (the tribunal's powers
relatingtothe conduct ofhearings); Rule25(the tribunal's powers relating tothereceiving ofevidence from witnesses);
Rule26 (tribunal-appointed experts); Rule 28.2 (the tribunal's power torule on its own jurisdiction); Rule 30 (the tri-
bunal’s power togrant interim relief); and Rule33 (the tribunal's power tocorrect awards and issue additional awards).
3 Arbitral tribunals possess certain inherent powers in order to ensure their effectiveness and preserve the
integrity
of the proceedings: T Landau and JR Weeramantry, ‘A Pause for Thought’ in A van den Berg (ed),

214
 A. Rule 27—Additional Powers of the Tribunal

2. Rule 27 (introductory paragraph)

Unless otherwise agreed by the parties, in addition to the other powers specified in these
Rules, and except as prohibited by the mandatory rules of law applicable to the arbitration,
the Tribunal shall have the power to (... ).

a. The tribunal's powers are subject to an agreement ofthe parties

The 2016 edition of the SLAC Rules makes clear for the first time in the history of SIAC that 12.03
the tribunal's prescribed powers are subject to any agreement of the parties. Thus, the parties
may decide to exclude or narrow some or all of the tribunal’s prescribed powers.‘ But that
does not mean the tribunal can only exercise its powers under Rule 27 upon an agreement
of the parties or after being requested to do so by a party. A tribunal can exercise its powers
under Rule 27 of its own motion (ie sua sponte). Although even in those circumstances, SIAC
tribunals in practice routinely consult the parties to an arbitration before exercising a power
under the SIAC Rules (other than perhaps in exceptional circumstances).
6. Mandatory rules oflaw
The tribunal’s powers are also subject to any mandatory rules of law applicable to the arbitra- 12.04
tion, and in particular those of the seat of the arbitration. Mandatory provisions of law have
been defined as those that ‘cannot be derogated from by way of contract’> and are considered
further in Chapter 5.°

3. Rule 27(a)

The Tribunal shall have the power to order the correction or rectification of any contract, sub-
ject to the law governing such contract;
a. Contract rectification
Rule 27(a) confirms that a SIAC tribunal has a broad power to correct or rectify a contract. 12.05
In contrast, the equivalent power in the 2013 SIAC Rules is expressly limited to the rec-
tification of a contract for ‘any mistake which it determines to have been made by all the
parties to that contract’.’ This is referred to as common or mutual mistake in common law
jurisdictions.® It was pointed out in the first edition of this book that this was an unnecessary

International Arbitration: The Coming of a New Age?, \CCA Congress Series, Vol 17 (Kluwer Law International
2013) 496, 517-23.
4 The equivalent provision in the 2013 SIAC Rules, Rule 24, was silent on whether the powers were subject
to an agreement of the parties or indeed whether the parties would be consulted before a power was exercised
by the tribunal. It was noted in the first edition of this book that this was inconsistent with other comparable
rules of arbitration, and in particular Art 22.1 of the (1998) LCIA Rules. Ironically, since then the LCIA has
omitted any reference to the powers of the tribunal in Art 22 of the (2014) LCIA Rules being subject to an
agreement of the parties, while SIAC has gone in the opposite direction by recognizing the importance of party
autonomy in this context.
5 N Blackaby, C Partasides et al (eds), Redfern andHunteron International Arbitration (6th edn, OUP 2015)
para 3.128, citing Art 3(3) of the 1980 Rome Convention on the Law Applicable to Contractual Obligations.
§ See Chapter 5, paras [5.16-5.20].
7 SIAC Rules (2013), Rule 24(a). ;
8 Asa matter of English law, a common mistake isone in which theparties areagreed on theterms ofthe
contract but have entered it under a shared and fundamental misappre the facts or the law’:HG
as tohension
Beale (ed), Chitty on Contracts: Volume 1: General Principles (32nd edn, Sweet & Maxwel 2015) para l6-001.
The mistake must be fundamental tothe contract and shared by allparties. A common mistake renders the
agreement void: Great Peace Shipping Ltdv Tsavlaris Salvage (International) Ltd[2003] QB 679 (English Court
of Appeal) para 59. The contract canalso berectified soitreflects the verbal agreement of theparties: Agip SPA
215
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)
eee
constraint on the powers of a tribunal as many legal systems recognize the ability of courts
and arbitral tribunals to order the rectification of contracts in circumstances beyond com-
mon or mutual mistake. Under Chinese law, for example, a contract may be rectified if it
was concluded based on a material mistake, the contract was grossly unconscionable at the
time of its conclusion, or the contract was procured by fraud or duress or by one taking
advantage of another’s hardship.? Swiss law allows a contract to be rectified if there has been
a fundamental change of circumstances in order to maintain the initial economic balance of
the contract.'®
12.06 Even English law, which inspired Art 22.1(g) of the (1998) LCIA Rules,’ on which Rule 24(a)
of the 2013 SIAC Rules is based, allows a contract to be rectified in circumstances beyond the
common or mutual mistake described in Rule 24(a) of the 2013 SIAC Rules, including where a
party's unilateral mistake was caused by the deception of the other party."
12.07 The 2016 SIAC Rules recognize that a tribunal has the power to rectify a contract in all these
circumstances and potentially others, subject only to the law governing the contract. As for
Singapore law, a contract can be rectified by a court or tribunal’? in the case of a unilateral
mistake as well as common mistake."

and ‘Nai Superba’) [1984] 1 Lloyd's Rep 353 (English Court of

Alta Italia SPA (the ‘Nai Genova’
v Navigazione
Appeal) 359. Other common law jurisdictions use the term ‘mutual mistake’: EA Farnsworth, Farnsworth on
Contracts (3rd edn, Aspen 2004) para 9.3, describing mutual mistake under US law; Restatement (Second) of
Contracts (1981) (US), s 152; Allen v WestPoint-Pepperell, Inc 945 F 2d 40 (2d Cir 1991) (United States), apply-
ing New York law defining mutual mistake.
9 Contract Law of the People’s Republic of China (1999), Art 54 (AATGA: PAIS, 5
BSA -FANMAKARER MARIS ROAM: (—) ABKREW WH;
(-—)#ATUARN BAAN. —AURME. PiEHMFRMARAZE . PNACE
HELE AMBAPU MHS , SMSARMAKARKRMA PRIULYDRERAM
. SSA REE , ARTAGEECE PRL. ’).
English translation:
National People’s Congress of the Republic of China, “Either party has the right to request a people's
court or an arbitration institution to alter or rescind any of the following contracts: (1) any contract
which is made under substantial misunderstanding; or (2) any contract the making of which lacks
fairness. Where a party makes the other party enter into a contract against its true will by means of
deceit, coercion or taking advantage of its difficulties, the injured party has the right to request a
people’s court or an arbitration institution to alter or rescind the contract. Where the request of the
party is an alteration to the contract, the people's court or arbitration institution shall not rescind it’.
‘0 H van Houtte, ‘Changed Circumstances and Pacta Sunt Servanda in E Gaillard (ed), Transnational Rules
in International Commercial Arbitration (ICC Publ Nr 480, 4) (Paris 1993) 105 (citing Swiss Federal Tribunal,
3 July 1919
ATF (45) 1919, II, 351, 355).
"1 This provision has been removed from the LCIA Rules (2014).
"2 In Thomas Bates & Son Ltd v Wyndhams (Lingerie) Ltd [1981] 1 All ER 1077, 1086, per Buckley LJ, the
English Court of Appeal held that a contract can be rectified in the event of a party’s unilateral mistake if the
other party knew of the mistake and did not draw it to the attention of the first party so that the non-mistaken
party could benefit from the mistake. Rectification of a contract can also be ordered under English law for fraud,
misrepresentation, or unfair dealing: May v Platt [1900] 1 Ch 616, 623 (England): ‘in order to obtain rectifica-
tion there must be a mistake common to both parties, and if the mistake is only unilateral, there must be fraud
or misrepresentation amounting to fraud’. Refer also to Beale, Chitty on Contracts (n 8) para 5-122.
'3 TAA, s12(5)(a) provides that a tribunal may award any remedy or relief that could be awarded by the
Singapore High Court ifthe dispute were the subject of civil proceedings in that court.
"4 ‘The principles governing the rectification of a contract under Singapore law were set out in Kok Lee Kuen
v Choon Fook Realty Pte Ltd [1996] 3 SLR(R) 182 (Singapore Court of Appeal) paras 44~48. See also A Phang
Boon Leong, “The Law of Contract in Singapore’ (Academy Publishing 2012) 650-58. Rectification in the
circumstances of unilateral mistake will only be ordered under Singapore law where one of the parties knows
of the other's mistake and deliberately omits to bring the suspicion of a possible mistake to the attention of the

216
 A. Rule 27—Additional Powers of the Tribunal

4. Rule 27(b)

The Tribunal shall have the power to, except as provided in these Rules, extend or abbreviate any
time limits prescribed under these Rules or by its directions;

a. Extensions oftime
Rule 27(b) grants the tribunal the power to extend or abbreviate procedural time limits. While 12.08
not stated, this power would not extend to time limits that were not within the tribunal’s power
to set in the first place. For instance, under the terms of Rule 32.3 the tribunal must submit
an award in draft form to the Registrar within 45 days from the date on which the tribunal
declares the proceeding ciosed. Only the Registrar or the parties can agree to extend this dead-
line. Similarly, only the Registrar may extend the time within which the tribunal shall make a
correction of an award pursuant to Rule 33.5.

5. Rule 27(c)

The Tribunal shall have the power to conduct such enquiries as may appear to the Tribunal to be
necessary or expedient;
a. Inquisitorial approach
Singapore is not the only common law jurisdiction,'S and SIAC not the only arbitral institu- 12.09
tion,'® to recognize the convergence between the civil law, of which inquisitional processes are a
key feature, and the common law, which has traditionally entrusted the elucidation of the facts
to the parties. This evolution is expressly recognized under Singapore law in section 12(3) of the
IAA, which provides that the tribunal shall, unless otherwise agreed by the parties, ‘have power
to adopt if its thinks fit inquisitional processes’.
Rule 27(c) of the SIAC Rules allows a SIAC tribunal to take the initiative in the conduct 12.10
of the proceedings if the parties’ submissions are not sufficient to allow the tribunal
to determine the issues in dispute. This includes the power to raise new issues to be
addressed by the parties such as the scope of the tribunal’s jurisdiction and whether
the underlying contract is illegal'” or violates public policy or some form of mandatory

other party or where he was fraudulent. Thus, there must be an element of impropriety for the rectification of
a unilateral mistake. Where this element of impropriety is not present, the court will not exercise its equitable
jurisdiction to rectify the contract. Constructive knowledge on the part of the non-mistaken party is insufficient
to trigger the rectification of a contract for unilateral mistake: Chwee Kin Keong and others v Digilandmall.com
Pte Ltd (2005) 1 SLR(R) 502 at para 80; Halsbury Laws of Singapore at para 80.168. For deliberate omission to
bring a mistake to the attention of the other party, see Etablissements Levy (Georges etPaul) vAdderley Navigation
Co Panama SA, The Olympic Pride [1980] 2 Lloyd’s Rep 67, 72. For fraud, see Blay v Pollard & Morris (1930)
1 KB 628, 633.
'5 IAA (Singapore), s 12(3); Arbitration Act (England), s 34(2)(g); International Arbitration Act 1974 (Cth)
(Australia), s 23J(1). )
16 SIAC Rules (2016), Rule 27(c) is consistent with ICC Rules (2017), Art 25(5): ‘At any time during the
ings, the arbitral tribunal may summon any party to provide additional evidence’; and LCIA Rules
(2014), Art 22.1(iii),which provides that the tribunal has the power: ‘to conduct such enquiries as may appear
to the Arbitral Tribunal to be necessar y including whether and to what extent the Arbitral Tribunal
or expedient,
should itself take the initiative in identifying the issues and ascertaining the relevant facts and the law(s) orrules
of law applicable tothe Arbitration Agreement, the arbitration and the merits of the parties’ dispute.’
7 C Partasides, “World Duty Free v The Republic ofKenya: a Unique Precedent?’, Chatham House, 28
March 2007, 8, available at <http://star.worldbank.org/corruption-cases/sites/corruption-cases/files/docu-
ments/arw/Moi_World_Duty_Free_Chatham_House_Mar_28_2007.pdf> (accessed 21 March 2017): ‘An
arbitral tribunal: (1) has the power and jurisdiction toconsider issues of illegality; and (2) candosoofitsown

217
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)
i __—E—E—E—E—=E—E
law.'® The tribunal can also request additional submissions from the parties, order the
production of documents, and request the attendance of awitness for questioning even
if he or she was not called by the opposing party for cross-examination. Any such inquir-
ies must be, in the view of the tribunal, ‘necessary or expedient’ to the resolution of the
dispute.
12.11 A tribunal’s powers under Rule 27(c) can be particularly important when the respondent is
not participating in the arbitration. In those circumstances, the tribunal has the power to
proceed with the arbitration pursuant to SIAC Rule 27(1). When doing so, it may consider
it necessary to raise additional issues to be addressed by the claimant in order for the tribunal
to be satisfied that it can rule on the issues raised for determination.

6. Rule 27(d)

The Tribunal shall have the power to order the parties to make any property or item in their
possession or control available for inspection;
a. Inspection ofproperty or item
12.12 Consistent with the tribunal’s inquisitorial powers in Rule 27(c), Rule 27(d) empowers the
tribunal to order a site visit or an inspection of any property or item if that would assist the
tribunal’s determination of the dispute.
12.13 The terms of this power were amended in 2016 to make clear that the tribunal’s power of
inspection is limited to property or items in the ‘possession or control’ of a party.
12.14 An earlier amendment in 2013 clarified that any inspection ordered by the tribunal need
not necessarily be attended by the parties. It could, for instance, be limited to the parties’
experts or, indeed, just the tribunal’s expert. A question remains as to what ‘item’ or ‘prop-
erty’ can be the subject of an inspection order by the tribunal. Guidance may be taken from
the LCIA Rules, which, as previously mentioned, first inspired the grouping of a number of
SIAC tribunal powers into a single rule. Art 22.1 (iv) of the LCIA Rules (2014), for instance,
indicates that the tribunal’s powers extend to the inspection of ‘documents, goods, samples,
property, site or thing’.

7. Rule 27(e)

The Tribunal shall have the power to order the preservation, storage, sale or disposal of any
property or item which is or forms part of the subject matter of the dispute;

motion, ex officio, if the issue has not been put before it by the parties’; and M Hwang and K Lim, ‘Corruption
in Arbitration Law and Reality’ in Selected Essays on International Arbitration (SIAC 2013) 565, 593: ‘So long
as due process concerns are met, in that arbitrators inform parties of the basis for their suspicions of corruption
and provide them with an opportunity to make submissions on the matter, arbitrators are entitled (indeed,
obliged) to inquire into corruption.’
'8 A tribunal has the power to consider issues of illegality or potential violations of public sua ie
of its own volition). Award in ICC Case No. 1110 of earn thepresence ofa onnian in aa Eton alas
set out hereafter, condemned by public policy, decency, and morality, I cannot in the interest of the adminis-
tration of justice avoid examining the question of jurisdiction on my own motion’, reproduced in (1994) 10
Arbitration Int'l 277. See also G Born, /nternational Commercial Arbitration (Kluwer Law International 2014)
at [835]: “Where the parties’ contract raises issues of illegality, violations of public policyormandatory law, or
performance of administrative functions, then the tribunal's mandate must necessarily include consideration of
those issues insofar as they would affect itsdecision orthe enforceability ofitsaward.”

218
 A. Rule 27—Additional Powers of the Tribunal

a. Freezing and other injunctions

Rule 27(e) empowers a tribunal to order the preservation, storage, sale, or disposal of any 12.15
property which is or forms part of the subject matter of the dispute.
Rule 27(e) and Singapore law"? allow a tribunal to issue an injunction to prevent the disposal 12.16
or dissipation of property which might otherwise be put beyond the reach ofaclaimant, but
only to the extent that the property is or forms part of the subject matter ofthe dispute. More
far-reaching freezing injunctions can be ordered by a tribunal pursuant to SIAC Rules 27(i)
and 30.1. The extent to which a freezing injunction can be ordered by a tribunal on an ex
parte basis is considered in Chapter 13.
A tribunal can also order the sale or disposal of property which is part of the subject matter
of the dispute.”
In addition to the powers to order the preservation, storage, sale, or disposal of property, 12.17
Singapore law authorizes an arbitral tribunal seated in Singapore to order the preservation
and interim custody of evidence,”' and to give directions relating to the taking of samples
or conduct of experiments upon any property which forms part of the subject matter of the
dispute.”
The powers described in Rule 27(e) can be exercised by the tribunal in the final award or, 12.18
more commonly, as an interim measure.

8. Rule 27(f)

The Tribunal shall have the power to order any party to produce to the Tribunal and to the
other parties for inspection, and to supply copies of, any document in their possession or con-
trol which the Tribunal considers relevant to the case and material to its outcome;
a. Document production
There is an expectation, as memorialized in Rule 20.7 of the SIAC Rules (see Chapter 9), 12.19
that the parties will voluntarily produce all relevant documents necessary to support their
respective cases. Document production ordered under Rule 27(f) should supplement (and
not replace) such voluntary disclosure and, for that reason, would ordinarily follow after each
party has had an opportunity to present the documents (or at least a list thereof) on which
it intends to rely. With that said, there may be special reasons why an order for document

19 TAA, s 12(1)(d): ‘an arbitral tribunal shall have powers to make orders or give directions to any party
for ... the preservation, interim custody or sale of any property which is or forms part of the subject-matter of
the dispute’; AA, s 28 .
» res deckercntofPonCalon oepescegoe ShipParad 2038 1 SLR 1159 at [39-40], the Singapore
High Court held that the Court had the power togrant interim relief in support of anarbitration in relation to
assets or evidence situated outside Singapore (in that case, cargo on aship that was lying in international waters)
if the seat of the arbitration was in Singapore and the court had in personam jurisdiction over the parties to the
local court proceedings. The Court further ruled at[60-63] that thesale ofthe cargo was necessary toprotect
eee ee ee
well of the crew was at risk).
7 Ei A OE AG OS toanyparty
AE ections
for... thepreservation and interim custody ofanyevidence forthepurposes oftheproceedings’; AA,s 28(2)(c).
22 JAA, s 12(1)(e): ‘an arbitral tribunal shall have powers to make orders or give directions to any party
for... samples tobe taken from, orany observation tobe made oforexperiment conducted upon, any property
_ which is orforms part of the subject-matter ofthe dispute’.
219
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)
a cennnnn DURUNNERORERIRInROI

disclosure is appropriate at the outset of an arbitration in the interests of a fair, expeditious

and economical resolution of the dispute.??
12.20 Any documents ordered for production under the SIAC Rules must be ‘relevant to the case
and material to its outcome’.”4 This qualification is consistent with the guidelines set out in
Art 3(3) of the IBA Rules on the Taking of Evidence in International Arbitration (2010),
which command widespread, but not universal, support.
12.21 Rule 27(f) provides that a party can be ordered to produce documents within its ‘possession
or control’. Control in this context might extend to documents in the possession of a related
entity, such as a parent or the subsidiary of a party, depending on the circumstances.”
12.22 The SIAC Rules do not expressly reference a party’s right to seek production of a class or
category of documents.” Nonetheless, Art 3(3)(a)(ii) of the IBA Rules on the Taking of
Evidence in International Arbitration (2010) would suggest that a party may seek disclos-
ure of a ‘narrow and specific requested category of Documents’ that are reasonably believed
to exist.

9. Rule 27(g)

The Tribunal shall have the power to issue an order or Award for the reimbursement of unpaid
deposits towards the costs of the arbitration;

a. Order or award on costs

12.23 Soon after an arbitration has begun the Registrar will request the parties to pay an advance
on the expected ‘costs of the arbitration’ (ie the costs of SIAC administrating the arbitra-
tion and the tribunal’s expected fees, but not the parties’ own legal fees) pursuant to Rule
34.2.2? The usual rule is that the advance on costs is payable in equal shares by the claimant
and the respondent,” although it is possible to have separate advances on costs set for each
party with reference to the amount it claims or counterclaims. If a party fails to pay its share

23 SIAC Rules (2016), Rule 19.1. It is also possible in some jurisdictions to obtain an order from a court
requiring the production of documents prior to the commencement of an arbitration: National Insurance and
Guarantee Corp Ltd v Young Legal Services Ltd [2005] 2 Lloyd’s Rep 46 (English High Court). That may not
be possible in Singapore, however, as the IAA, s 12A(2) indicates, when read with s 12(1)(b) of the LAA, that
for arbitrations in Singapore only an arbitral tribunal has the power to order the ‘discovery of documents and
interrogatories’. For a discussion of the principles relating to pre-action discovery in Singapore court litigation,
see Ching Mun Fong v Standard Chartered Bank [2012] 4 SLR 185 at [26]. In one SIAC arbitration in which
the author of this chapter was counsel, the sole arbitrator ordered the respondent to disclose a specific docu-
ment even before the first preliminary meetings had been held on the basis that the document was relevant and
material to the outcome of the case, would clearly have to be disclosed during the course of the arbitration given
its significance, and could help, if disclosed early, to resolve the dispute amicably.
24 In contrast, SIAC Rules (2007), Rule 24(h) only requires the documents to be relevant.
25 Born, International Commercial Arbitration (n 18) Vol II, 2364: “The essential point is that control is nota
technical concept, but rather a practical one which should be liberally interpreted and applied.’
26 In contrast, LCIA Rules (1998), Art 22.1(e), upon which SIAC Rule 27(f) is based, provides: ‘the Arbitral
tribunal shall have the power .. . to order any party to produce to the Arbitral Tribunal and to the other parties
for inspection, and to supply copies of, any documents or classes ofdocuments in their possession, custody or
power which the Arbitral Tribunal determines to be relevant’ (emphasis added). The 2014 version of the LCIA
Rules, however, omits a reference to the disclosure of ‘classes of documents’: LCIA Rules (2014), Art 22.1(v).
27 Rule 35.2 defines the ‘costs of the arbitration’ as including the costs of the tribunal, the Secretariat, and
any experts or other assistance required by the tribunal. It does not include party costs. See Ch 15.
28 SIAC Rules (2016), Rule 34.2.

220
 A. Rule 27—Additional Powers of the Tribunal

of the advance on costs, the other party may be invited to pay the outstanding
balance to
ensure that the tribunal and SIAC Secretariat have sufficient funds so that the arbitration
can
continue.” The 2016 version of Rule 27(g) provides that the tribunal may issue an order
or
award in such circumstances requiring the non-paying party to compensate the paying
party
for its share of the advance on costs.3°
This has the attraction of allowing the party which has paid the other party's share of the 12.24
advance on costs to pursue enforcement proceedings against the non-paying party even
before the arbitration has been concluded.

10. Rule 27(h)

The Tribunal shall have the power to direct any party or person to give evidence by afhidavit
or in any other form;

a. Power to order witness evidence

Rule 27(h) is arguably limited to empowering the tribunal to give directions regarding the 12.25
form of evidence (ie by an affidavit, witness statement, or some other form) that may be
presented by a party or other person. A more expansive interpretation, however, is that Rule
27(h) allows a tribunal to compel or ‘direct’ a party or person to give evidence.31 Whether
such an order directed towards a non-party to the arbitration is enforceable will depend
on the applicable law and whether the local courts will come to the aid of the tribunal. In
Singapore, the High Court can order a person (who is in Singapore) to testify in person
before an arbitral tribunal.3?
11. Rule 27(i)

The Tribunal shall have the power to direct any party to take or refrain from taking actions to
ensure that any Award which may be made in arbitration is not rendered ineffectual by the
dissipation of assets by a party or otherwise;
a. Directions to ensure the effectiveness ofan award
Rule 27(i) describes an important power. While the SIAC Rules are intended toensure thata 12.26
dispute is determined through a final award as quickly as possible (with even greater pressure
on all concerned to do that under the 2016 iteration of the Rules), there may be a risk that
before that can happen a party will take steps to move or dissipate its assets with a view to
frustrating or delaying any enforcement efforts that may be pursued against it should it lose
the arbitration. In those circumstances, Rule 27(i) allows a tribunal to issue orders requiring

29 SIAC Rules (2016), Rule 34.5: ‘Any party is free to pay the whole ofthe deposits towards the costs of the
arbitration should the other party fail to pay its share.’ See Ch 15. .
30 The corresponding provision to Rule 27(g) in the 2010 and 2013 SIAC Rules allows a tribunal to issue
an ‘award’ for the ‘costs of the arbitration’: SIAC Rules (2010 and 2013), Rule 24(h). The amendments made
in 2016 make it clearer that the power is directed towards the provision of relief during the course of an arbi-
tration, in the form of an order or an award, in response to another party’s failure to pay its share of the advance
on costs. A tribunal can still issue an award on costs at the conclusion of the arbitration pursuant to either Rule
somes iti ;
This is supported by a consideration of Rule 25.4, which is more clearly directed towards
the form in which evidence should be presented. Indeed, given the terms of Rule 25.4, a narrow interpretation
of Rule 27(h) would appear to deprive it of much utility.
32 TAA,s 13(2) and AA, s 30(2).
221
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)
eee
a party to do or refrain from doing certain activities which risk frustrating the object of the
arbitration.

12.27 Rule 27(i) is consistent with, and indeed is modelled on, section 12(1)(h) of the LAA, which
provides that: ‘an arbitral tribunal shall have powers to make orders or give directions to any
party for ... ensuring that any award which may be made in the arbitral proceedings is not
rendered ineffectual by the dissipation of assets by a party’.**
12.28 A tribunal may combine its Rule 27(i) power with other more specific powers, such as the
tribunal’s authority to order the preservation of property under Rule 27(e); the provision of
security for all or part of the amount in dispute pursuant to Rule 27(k); and ‘an injunction
or any other interim relief’ pursuant to Rule 30.1.

12. Rule 27(j)

The Tribunal shall have the power to order any party to provide security for legal or other costs
in any manner the Tribunal thinks fit;

a. Security for costs

12.29 A claimant may pursue a claim which it ultimately loses and then be ordered to pay the costs
of the respondent pursuant to SIAC Rules 35.1 and 37. By that time, however, the claimant
(or counter-claimant) may be unable or unwilling to comply with the tribunal's ruling on
costs. In order to mitigate that risk, a claimant (or counter-claimant) may be ordered at an
early stage of the proceedings to provide security in the form of a sum of money or a bank
guarantee to cover the other party's expected reasonable costs in case the claim is ultimately
determined to be unmeritorious.
12.30 There are a range of factors which a SIAC tribunal may take into account when considering
whether to exercise its discretion to order security for costs.*4
12.31 First, a tribunal may be asked to consider whether there is a risk that a claimant (or counter-
claimant) may not be able to or willing to pay the costs of the arbitration if its claim were to
fail.35 In the words of the Singapore Court of Appeal, albeit in the context of Singapore court
litigation:?¢ ‘the law on security for costs?’ is express recognition that impecunious compa-
nies do not have an unfettered freedom to commence legal actions, against defendants who
cannot be compensated in costs if they win’.

33 See also AA, s 31(1)(c).

4 Creative Elegance (M) Sdn Bhd v Phua Kim Seng and another |1999| SGCA 4 at [13].
35 Pearson v Naydler (1977) 3 All ER 531 (English High Court) 536, cited in Sembawang Engineering PteLtd
v Priser Asia Engineering Pte Ltd (1992) 2 SLR(R) 358, para 19:
It seems plain enough that the inability of the plaintiff company to pay the defendants’ costs is a
matter which not only opens the jurisdiction but also provides a substantial factor in the decision
whether to exercise it. It is inherent in the whole concept of the section that the court is to have
power to do what the company is likely to find difficulty in doing, namely, to order the company to
provide security for the costs which ex hypothesi it is likely to be unable to pay. At the same time,
the court must not allow the section to be used as an instrument of oppression, as by shutting out a
small company from making a genuine claim against a large company.
See also Chartered Institute of Arbitrators Guidelines on Applications for Security for Costs (2015).
36 Ho Wing On Christopher v ECRC Land Pte Ltd{2006] 4 SLR(R) 817 (Singapore Court of Appeal) at [72].
3” See s 388 of the Companies Act (Ch 50), which is applicable to Singapore court litigation but not neces-
sarily arbitration.

222
 A. Rule 27 Additional Powers of the Tribunal

Second, the risk of non-compliance with an adverse costs order might be considered to be 12.32
heightened if the claimant has assets in a jurisdiction in which enforcement of an award will
be problematic. Similarly, an application for security for costs might be strengthened ifthere
is evidence that the party against whom security for costs is sought ‘will place all kinds of
obstacles in the recovery of costs should the [applicant] succeed at trial’38
Third, a tribunal may consider whether the party against which an application for security 12.33
has been brought is a natural person or an incorporated entity. As a general rule, litigants
(or arbitrants) in person are not required to provide security for costs as ‘the power to
require security for costs ought not to be used so as to bar even the poorest man from the
courts.39
Further, the origin of the party and its assets might also be considered. However, security 12.34
for costs cannot be ordered in an arbitration under Singapore law merely because the party
which is the subject of the application is an individual ordinarily resident outside Singapore
or is a foreign corporation.”
Fifth, the size of the respective parties may be a relevant consideration as it has been observed 12.35
that a tribunal should not allow the power to grant security for costs to be used as an instru-
ment of oppression, as by shutting outa small company from making agenuine claim against
a large company.*'
Other factors which may be relevant to an arbitral tribunal when considering an application 12.36
for security for costs include the following:
(a) the respective strength of the parties’ cases considered on a prima facie basis;“
(b) even if neither party has a prima facie stronger case on the merits, or a tribunal does not
feel comfortable addressing that issue in the context of a security for costs application,
unreasonable behaviour by a party either before or during the proceedings may warrant
it being ordered to provide security for costs;4?
(c) the complexity of the dispute and the likely costs of the arbitration;

38 Abdul Salam Asanara Pillai v Nomanbhoy & Sons Pte Ltd [2008] SGHC 48 at para 6.
39 Pearson v Naydler (n 35); Cowell v Taylor (1885) 31 Ch D 34 at [38].
40 JAA, s 12(4). This restriction was considered necessary to ensure that orders for security for costs are not
used in a manner that might discourage foreign parties from choosing Singapore as a place for arbitration. R
Merkin andJ Hjalmarsson, Singapore Arbitration Legislation: Annotated (2nd edition, Informa 2009) 60-61;
and D Joseph and D Foxton, Singapore International Arbitration: Law and Practice (LexisNexis 2014) 213.
41 Pearson v Naydler (n 35) (English High Court) 536, cited in Sembawang Engineering PteLtd v Priser Asia
Engineering Pte Ltd (1992) 2 SLR(R) 358, para 19.
42 Frantonios Marine Services Pte Ltd v Kay Swee Tuan (2008) 4 SLR 224 at para 46. But even if an applicant
for security for costs (or the respondent to the application) shows that it has a high probability of success on
the merits, this is just one of the circumstances to be taken into account by a Singapore court (and, by analogy,
a tribunal) considering whether to exercise its discretion to award security for costs: Creative Elegance (n 34) at
[25]. With that said, arbitral tribunals might beless willing than a court to consider the prospects of success ofa
claim even ona prima facie basisatanearly stage of anarbitration. Arbitrators havetotake care not toprejudge
or predetermine the merits of a case.
43 Abdul Salam Asanaru Pillai (n 38) at para6. “The parties had been constantly accusing each other of
delay and unreasonableness. In my view, itwas the plaintiff who had been the more unreasonable party. |am
of the view that some security for costs t tobeprovided even ifonly asa small measure inreducing further
{interlocutory} before trial. Ifnot for the fact that neither party had a prima facie stronger claim on
merits, (...) I would have ordered a larger sum [in security] (...).’
“4 Frantonios
Marine Services (n 42), at (47).
223
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)
s
i e
cescissseiee an
(d) whether an order for security for costs ‘would undoubtedly stifle [the claimant's] claim’
because ofits financial position;
(ec) whether the party against which security for costs is sought has a ‘present dire financial
situation ... wrongfully brought about by the [other party]’;° and
(f) whether ir is fair in all the circumstances to require one party to provide security for the
other party's costs.4’
12.37 SIAC Rule 27(j) provides that ‘any party’ may be ordered by the tribunal to provide secur-
ity for legal or other costs of another party. This reflects the language of the corresponding
provisions in the IAA*® and AA.*9 In practice, however, it is usually an impecunious claim-
ant which is ordered to provide security for costs in order to protect a respondent against
incurring costs defending an unmeritorious claim which it may not be able to subsequently
recover. A respondent could also be ordered to provide security for costs in circumstances
where it has raised a counterclaim.>° With that said, given that the SIAC Rules and Singapore
law expressly recognize that ‘any party’ can be the subject of a security for costs order, in
theory it might be possible for a respondent to be ordered to provide security for costs even if
it has not raised a counterclaim. This could, for instance, conceivably arise in circumstances
where a respondent unreasonably refused to participate in any agreed pre-arbitration dispute
resolution procedures.>"
12.38 Once ordered, security for costs is typically provided by a party in the form of a bond, a bank
guarantee or payment into an escrow account. The tribunal may order the party to be pro-
tected by the security for costs to provide a cross-indemnity, itself secured in such manner as
the tribunal considers appropriate, for any costs and losses incurred by the party providing
security for costs.>4
12.39 SIAC Rule 27(j) is silent as to the consequences of a party’s failure to comply with an
order requiring it to provide security for costs. Nonetheless, a SIAC tribunal would
appear to have the power to suspend a party’s claims or counterclaims until it complies
with the order to provide security for costs or dismiss the claims or counterclaims in an
award.°3

Creative Elegance, (n 34) at [32]. This would need to be weighed against the risk the respondent may
incur costs defending such a claim which cannot be subsequently recovered against the impecunious claimant.
46 Frantonios Marine Services (n 42) at para 44.
47 Chartered Institute of Arbitrators Guidelines on Applications For Security For Costs (2015), Art 1(2)(iii).
48 TAA, s 12(1)(a): ‘an arbitral tribunal shall have powers to make orders or give directions to any party
for ... security for costs’ (emphasis added).
49 AA, s 28(2)(a).
50 eg LCIA Rules (2014), Art 25.2 empowers a tribunal to order a ‘claiming or counterclaiming party’ to
provide security for the costs of another party.
°! With that said, there are no reported cases in which such an application for security for costs has suc-
ceeded, and one instance in 2016 of a SIAC sole arbitrator rejecting such an argument in a case known to the
author of this chapter. In any event, such an application for security by a claimant may be better brought under
SIAC Rule 27(k), which is more naturally relied upon by a claimant when seeking security from a respondent.
52 This power is stated expressly in LCIA Rules (2014), Art 25.2. «
*3 This power is stated expressly in LCIA Rules (2014), Art 25.2: ‘In the event that a claiming or cross-
claiming party does not comply with any order to provide security, the Arbitral Tribunal may stay that party's
claims or cross-claims or dismiss them by an award.’ SIAC Rules (2016), Rules 34.6, which allows the tribunal
to suspend its work or the Registrar to declare claims or counterclaims to be withdrawn if aparty fails
advance on costs, is also relevant by way of analogy. : na

224
 A. Rule 27—Additional Powers of the Tribunal

Finally, for arbitrations governed by the LAA, the Singapore courts are expressly prohibited 12.40
from deciding requests for security for costs, leaving such matters to the exclusive domain
of arbicral cribunals.** The Singapore High Court, however, can issue orders for security for
costs in support of arbitrations subject to the AA.55

13. Rule 27(k)

The Tribunal shall have the power to order any party to provide security for all or part of any
amount in dispute in the arbitration;

a. Security for an amount in dispute

Rule 27(k) authorizes SIAC tribunals to order a party to provide security for some or all of 12.41
the amount in dispute.
As with Rule 27(j), Rule 27(k) allows a tribunal to order ‘any party’ to provide security for 12.42
the amount in dispute. Again, this reflects the fact that the corresponding provision in the
IAA is phrased that way.°* In practice, however, the power can only be exercisable against a
respondent (or respondent to a counterclaim).5”

Orders requiring a respondent (or respondent to a counterclaim) to post security for all 12.43
or part of the amount in dispute are rare. Such an order might be appropriate if a tribunal
were to have reason to believe, for instance, that a respondent will attempt to hide or dis-
sipate assets to avoid complying with an award. An order requiring the payment of security
for the amount in dispute could also potentially be made if a respondent put forward a
weak defence. By way of analogy, Schedule 2 to the 2010 and 2013 SIAC Rules expressly
provides that, if the parties have agreed to the 2002 SIAC Domestic Arbitration Rules,
a tribunal may order a respondent to provide security for the claimant’s claim or part of
the claim if it does not raise a valid defence. Alternatively, the power might be exercisable
if a respondent has engaged in unreasonable conduct or resorted to so-called ‘guerilla
tactics’.58
The tribunal may require the requesting party to indemnify the party ordered to post 12.44
the security, with the indemnity secured in such manner as the tribunal considers
appropriate.>?

14. Rule 27(I)

The Tribunal shall have the power to proceed with the arbitration notwithstanding the failure
or refusal of any party to comply with these Rules or with the Tribunal’s orders or directions
or any partial Award or to attend any meeting or hearing, and to impose such sanctions as the
Tribunal deems appropriate in relation to such failure or refusal;

54 TAA, s12A(2).
55 AA, ss 28 and 31(1). RSC Ord 23 r1 sets out the basis for the Singapore High Court to order security
for costs.
56 JAA, s 12(I)(g): ‘an arbitral tribunal shall have powers to make orders or give directions to any party
for... securing the amount indispute’ (emphasis added). Section 31 (b) ofthe AA, when read in conjunction
with s 28,suggests that only the High Court can order security for the amount in dispute inproceedings gov-
erned by the AA.
sid Deets daastek lmacideniotpabbe ones provide seseciyfortheamount chax intfpda.
58 G Horvath and S$Wilske (eds), Guerilla Tactics inInternational Arbitration (Wolters Kluwer 2013).
59 This principle isstated expressly inLCIA Rules (2014), Art25.1(i).
225
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)

a. Tribunal powers in the event ofnon-compliance

12.45 Rule 27(l) authorizes a SIAC tribunal to proceed with an arbitration notwithstanding a
party's failure to comply with the SIAC Rules, the tribunal's orders, directions, or a partial
award, or to attend any meeting or hearing. It can also impose appropriate sanctions on
the non-complying party. The rule does not specify the panoply of possible sanctions a tri-
bunal may impose for non-compliance, leaving the decision to the tribunal in the relevant
circumstances.

12.46 The non-complying party can, for instance, be ordered to pay the other party’s costs.®°
More drastic actions may also be taken in certain circumstances. A tribunal may terminate
the proceedings if the claimant fails to submit its Statement of Claim within the time spec-
ified.*' Similarly, the Registrar or the tribunal can suspend the arbitration if any advances
on costs remain unpaid® or a party fails to comply with an order to provide security for
costs.°
12.47 Rule 27(I) is reinforced by Rule 24.3, which allows a tribunal to proceed with a hearing or
meeting in the absence of a party if it fails to attend ‘without showing sufficient cause for
.©4
such failure’

15. Rule 27(m)

The Tribunal shall have the power to decide, where appropriate, any issue not expressly or
impliedly raised in the submissions of a party 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;
12.48 As discussed in Chapter 9, the SIAC Rules were amended in 2013 following the 2012 deci-
sion in Kempinski Hotels® in which the Singapore Court of Appeal held that a tribunal has
the power to decide an issue not formally pleaded by a party provided the other party is given
notice of the issue and does not suffer any prejudice from the omission of the issue from the
pleadings. The ruling is reflected in the terms of Rule 27(m).
12.49 Rule 27(m) allows a SIAC tribunal to decide a new issue raised by a party during the
course of the proceedings. The tribunal may itself also identify and decide new issues of
its own volition provided the parties are given an opportunity to be heard on any such
issues.

16. Rule 27(n)

The Tribunal shall have the power to determine the law applicable to the arbitral proceedings;

i
rl
60 SIAC Rules (2016), Rule 37.
61 SIAC Rules (2016), Rule 20.8,
62 SIAC Rules (2016), Rule 34.6.
63 SIAC Rules (2016), Rule 27(j).
2 oea on Rule 24.3, see Ch 9,
ma International Development v Kempinski Hotels SA and other (2012) 4 SLR 98 (Singapo
Court of Appeal) para 49: ‘the crucial question is whether Kempinski wateeeinia by
Prima’s anal ne
amend its pleadings to plead the New Management Contract and its legal effect’.
® See the discussion in this chapter regarding the powers of the tribunal under Rule 27(©).

226
 A. Rule 27—Additional Powers of the Tribunal

a. the tribunal’ power to determine the lex arbitri

Rule 27(n) authorizes the tribunal to determine the procedural law applicable to the arbi- 12.50
tration. This is referred to as the lex arbitri.” It should not be confused with (a) the law
applicable to the substance of the dispute (ie the ex causae), (b) the proper law of the arbitra-
tion agreement (both of which are addressed in part B of this chapter), or (c) the applicable
procedural rules of arbitration, namely those of SIAC.
The /ex arbitri operates independently of the parties arbitration agreement. The matters 12.51
regulated by it include:®*
(a) the composition, appointment, jurisdiction, and conduct of the tribunal;
(b) the relationship between the arbitration and the courts, including in relation to requests
for interim relief, the scrutiny of arbitrators and their decisions, and the disclosure of
evidence, and securing the attendance of witnesses at hearings; and
(c) the broader relationship between arbitration and society, including whether claims are
‘arbitrable’ (ie can be resolved by arbitration rather than through the courts) and deci-
sions consistent with a state’s public policy.
As the laws applicable to matters of procedure (ie the /ex arbitri) may be different to those 12.52
governing the substance of a dispute (ie the /ex causae), a tribunal may first need to character-
ize whether an issue is procedural or substantive in order to determine the applicable law.
This can be complicated by the fact that certain issues, like applicable limitation periods, can
be characterized differently as either procedural or substantive depending on the particular
legal system under which the analysis is conducted.

17. Rule 27(o0)

The Tribunal shall have the power to determine any claim of legal or other privilege.
a. The tribunal’ power to determine claims ofprivilege
Rule 27(0) empowers a SIAC tribunal to determine claims of legal or other privilege. Art 12.53
9.3 of the IBA Rules on the Taking of Evidence in International Arbitration (2010) provides
guidance on the factors that a tribunal may wish to consider when determining claims of
legal privilege.”
The scope of ‘other privilege’-—beyond ‘legal privilege’-—referred to in Rule 27(0) presum- 12.54
ably extends to claims of confidentiality as well as claims that documents cannot be disclosed
because of political, national security, or institutional sensitivity.”!

67 Rule 27(n) refers to the law applicable ‘to’ the arbitral proceedings (ie the /ex arbitri) rather than the law
60
applicable ‘in’ the arbitration (ie the lex causae): Jan Paulsson, ‘Arbitration in Three Dimensions’ (2011)
ICLQ 291.
68 Paul Smith Ltd v H & S Internatio nal
Holding Inc (1991) 2 Lloyd’s Rep 127 at [130].
69 A Henderson, ‘Lex Arbitri, Procedural Law and the Seat of Arbitration’ (2014) 26SAcL] 886.

n Seas tl ceadinttinh denimatednicnde lsTenakisad TheLaw ofPrivilege(2nd

JP 2011); M de Boisseson, van den Berg (ed),
in International Arbitration in AJ
pian 4 «omsmme oe ofthe ICCA International Arbitration Congress 705
(Kluwer Law Internationa 2007).
l

227
 The Powers of the Tribunal (SIAC Rules 27 and 31)
SS

B. Rule 31—Applicable Law, Amiable Compositeur,

and Ex Aequo et Bono
12.55 This part of Chapter 12 considers the power of a tribunal under Rule 31 to determine the
law applicable to the substance of a dispute (in the absence of the parties having agreed the
applicable law) and to determine a dispute on equitable grounds (if authorized to do so by
the parties). While not expressly covered by Rule 31, the law applicable to the interpretation
of the arbitration agreement is also considered.” A tribunal's obligations to apply the terms
of the relevant contract and to take into account applicable trade usages are also addressed.

1. Rule 31.1

The Tribunal shall apply the law or rules of law designated by the parties as applicable to the
substance of the dispute. Failing such designation by the parties, the Tribunal shall apply the
law or rules of law which it determines to be appropriate.
a. The parties right to choose the law or rules oflaw applicable to the merits ofthe dispute
12.56 According to Rule 31.1, the tribunal ‘shall’ decide the merits of a dispute according to such
law or ‘rules of law’ agreed by the parties. The role of the tribunal is not to second-guess the
reasonableness of the parties’ choice of law, but ordinarily only to respect it.
12.57 With that said, the parties’ choice of law may not be applicable to all aspects of a dispute.
For instance, the choice of law applicable to the substance of the dispute may not apply to
the interpretation of the parties’ arbitration agreement (which is discussed in paragraphs
[12.64 to 12.73]). Further, the parties may not be able to choose the law applicable to their
capacity to enter into the underlying contract or arbitration agreement,’ nor seek to avoid
through their choice of law the mandatory laws of the place of performance or the place of
the arbitration.”4 Such mandatory laws include those relating to tax evasion, financial securi-
ties, and anti-trust, or business competition. The Singapore Court of Appeal in Peh Teck Quee
v Bayerische Landesbank Girozentrale noted:
... when parties have expressed their intention as to the law governing the contract, their
expressed intention, in general, determines the proper law of the contract. The only qualifica-
tions to the parties’ autonomy are that the application of foreign law should not be contrary
to public policy and that the choice should be bona fide and legal.’®

72 For a discussion on the tribunal’s power to determine the law applicable to the arbitral procedure, see the
analysis of Rule 27(n).
73, New York Convention, Art V(1)(a); 1985 UNCITRAL Model Law, Art 34(2)(a)(i); Regulation (EC)
593/2008 of 17 June 2008 on the law applicable to contractual obligations (Rome I), Art 1(2)(a).
74 New York Convention, Art V(2); 1985 UNCITRAL Model Law, Art 34(2)(b). In Mitsubishi Motors Corp
v Solder Chrysler-Plymouth Inc (1985) 473 US 614 (Supreme Court of the United States) 637, the US Supreme
Court held that ‘in the event the choice-of-forum and choice-of-law clauses operated in tandem as a prospective
waiver of a party’s right to pursue statutory remedies for antitrust violations, we would have little hesitation in
condemning the agreement as against public policy’.
” Peh Teck Quee v Bayerische Landesbank Girozentrale [1999] 3 SLR(R) 842 (Singapore Gourt of Appeal) at
[12]. The two (related) principles of illegality canvassed in Peh Teck Quee were applied in the very first published
decision of the Singapore International Commercial Court in BCBC Singapore Pte Ltd and another v PT Bayan
Resources TBK and another (2016) 4 SLR 1 at [174-81]. The first principle is that a Singapore court will not
enforce a contract or award damages for its breach ifits object or purpose would involve doing an act in a foreign
and friendly state which would violate the law of that state. The second principle, also grounded in concerns

228
 B. Rule 31—Applicable Law, Amiable Compositeur, and Ex Aequo et Bono

In the absence of an agreement to the contrary, the parties’ choice of law is generally consid- 12.58
ered to exclude that law's conflict of laws rules. This principle is stated expressly in the 1985
UNCITRAL Model Law, which has been incorporated into Singapore law.’¢

The ‘rules of law”? that may be designated by the parties include non-national or trans- 12.59
national law such as the so-called lex mercatoria (or law of merchants developed through
custom and practice), the UNIDROIT Principles of International Commercial Contracts,
and the United Nations Convention on Contracts for the International Sale of Goods (the
CISG).”* The tribunal could also apply multiple sources of law if that were agreed by the
parties.
While the adoption of rules of non-national or transnational laws in a private contract is 12.60
relatively rare (not least because they are less predictable than national laws), the choice has
been held to be enforceable.’
b. The tribunal’ power to determine the applicable law in the absence ofan agreement ofthe
parties
In the absence of agreement by the parties, Rule 31.1 allows the tribunal to apply the ‘law or, 12.61
following an amendment in 2016, the ‘rules of law’®° which it determines to be ‘appropriate’
to the substance of the dispute.®' Thus, the tribunal is not compelled under the SIAC Rules
to undertake a conflict of laws analysis in order to determine the ‘appropriate’ law. That is,
it can use the so-called vote directe, or literally the direct route, method for choosing the
applicable law. In contrast, Singapore law requires a tribunal to conduct a conflict of laws
analysis if the parties have not chosen the law applicable to the substance of the dispute.®
There is arguably no tension between Singapore law and Rule 31.1 on this point, however,
as the parties’ selection of the SIAC Rules, and in particular Rule 31.1 therein, represents an

for international comity, is that a contract is invalid if it is unlawful by the law of the county where the contract
is to be performed.
76 IAA, s 3(1); 1985 UNCITRAL Model Law, Art 28(1):
The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by
the parties as applicable to the substance of the dispute. Any designation of the law or legal system
of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive
law of that State and not to its conflict of laws rules.
77 This expression reflects Singapore law (IAA, s 3(1); 1985 UNCITRAL Model Law, Art 28(1)) and is com-
monly used in arbitration rules: ICC Rules (2017), Art 21(1); LCIA Rules (20 14), Art 22.3; UNCITRAL Rules
(2010), Art 35(1). In contrast, UNCITRAL Rules (1976), Art 33(1) provides: “The arbitral tribunal shall apply
the law designated by the parties as applicable to the substance of the dispute’ (emphasis added).
78 The Singapore High Court considered the application of the CISG in Triulzi Cesare SRL v Xinyi Group
(Glass) Co Ltd {2015] 1 SLR 114 at paras 160-64. The tribunal determined that the governing law of the three
contracts at issue was Singapore law. The plaintiff sought to have the award set aside on the grounds, among
other things, that the tribunal had failed to apply the CISG, which forms part of the law of Singapore. Rejecting
the challenge, Justice Belinda Ang noted that the plaintiff did not identify which terms of the CISG had not
been applied and, in any event, the tribunal had applied Art 35 of the CISG regarding the requisite burden
of proof. The Court also rejected the argument that a failure to apply the CISG (if that hadhappened) was a
of icy.
Saad aimeinanclie ides, Redfern and Hunter (n 5) para 3.176, fn 212, referring to the courts ofFrance,
Austria, and England.JPaulsson, ‘La lexmercatoria dans l’arbitrage CCI’ [1990] Rev Arb 55, 58.
80 See para [12.59] for a discussi on s ‘rule
on what constitute s
oflaw’. i
81 The tribunal’s power to determine the /ex arbitri isprescribed bySIAC Rules (2016), Rule 27(n) asdis-
cussed earlier inthischapter.
82 IAA, s 3(1); 1985 UNCITRAL Model Law, Art 28(2); AA, s 32(2).

229
 The Powers of the Tribunal (SIAC Rules 27 and 31)
enn SE ARE NEE EENNNER
agreed method for determining the applicable law. Accordingly, the condition which triggers
a tribunal’s obligation to conduct a conflict of laws analysis under Singapore law (namely
that the parties have not reached an agreement on applicable law) arguably does not arise
when parties choose the SLAC Rules and the choice of law provisions therein.
12.62 In any event, a tribunal following the voie directe method under Rule 31.1 is likely to have
some regard to conflict of laws rules in determining what is the appropriate law. Indeed,
some commentators have expressed the view that arbitrators must employ a conflict of laws
approach even under rules which allow the voie directe method in order to avoid having their
choice of law deemed arbitrary.®3 Thus, in practice tribunals often consider the results of a
conflicts of laws analysis even when applying the voie directe approach.
12.63 It is important that the parties know early in the proceedings under which law they should
be arguing the case. Accordingly, a tribunal will often decide the applicable law in its first
procedural order or in a partial award with reasons.
c. Law applicable to the arbitration agreement
12.64 The separability principle is discussed in Chapter 10. It provides that an arbitration clause
is separable and divisible from the contract in which it is contained. The principle has been
developed and given legislative force in Singapore™ so that an allegation that a contract
(in which an arbitration clause is incorporated) is void or non-existent does not deprive
the tribunal of jurisdiction to determine that issue. A possible unintended consequence of
the principle, however, is that the law which governs the interpretation and validity of the
separable arbitration agreement may be different from the law which governs the broader
contract in which the arbitration agreement sits.®°
12.65 Yet parties rarely expressly stipulate in their contracts the law which governs the arbitration
agreement.® Indeed, even the SLAC Model Clause makes no express reference to the law
governing the arbitration agreement.®” It is good practice, however, for parties to stipulate
the law applicable to the arbitration agreement to avoid having to debate the issue once a
dispute arises.®8

83 Turner and Mohtashami, A Guide to the LCIA Arbitration Rules (OUP 2009) para 6.76: ‘Poudret and
Besson rightly say that “the choice must not be arbitrary, in particular dictated solely by the solution which the
arbitrators intend to reach on the merits, but must be based on objective criteria, with the result that a conflict-
of-laws approach is indispensable” ’.
84 TAA, s 3(1), 1985 UNCITRAL Model Law, Art 16(1); AA, s 21(2).
85 The laws potentially applicable in an arbitration have been summarized thus:
In arbitration, (...) issues of law may arise which may fall for determination in accordance with
any of the following: (1) the law that governs the capacity of the parties to the agreement; (2) the law
that governs the arbitration agreement; (3) the law that governs the procedure of the arbitration;
(4) the law that governs the supportive and enforcement measures; and (5) the law that governs the
substantive rights of the parties: Halsbury Laws of Singapore at para 20.005.
86 Halsbury Laws of Singapore at para 20.006, in particular fn 3.
8” ‘The SIAC Model Clause simply provides: “The contract is governed by the laws of [state the country or jur-
isdiction]’. In contrast, the HKIAC Model Clause encourages the parties to stipulate the law of the arbitration
agreement, particularly where the law of the substantive contract and the law of the seat aré different, available
at <http://www.hkiac.org/arbitration/model-clauses> (accessed 21 March 2017).
88 The LCIA Rules avoid this debate by providing that ‘the law applicable to the Arbitration Agreement and
the arbitration shall be the law applicable at the seat of the arbitration, unless and to the extent that the parties
have agreed in writing on the application of other rules of law and such agreement is not prohibited by the
applicable at the arbitral seat’: LCIA Rules (2014), Art 16.4. ¥ Ped

230
 B. Rule 31—Applicable Law, Amiable Compositeur, and Ex Aequo et Bono

Should a SIAC tribunal with its seat in Singapore be called upon to determine the law 12.66
governing an arbitration agreement in the absence of an express choice having been made
by the parties, it is likely to follow the English Court of Appeal decision in SulAmérica Cia
Nacional de Seguros SA & Ors v Enesa Engenharia SA (‘SulAmérica’).®° Thus, in the absence
ofan express choice by the parties, the tribunal is likely to consider (a) consider whether the
parties made an implied choice of law, and (b) where both the express and implied choice
cannot be ascertained, apply the law with which the arbitration agreement has the closest
and most real connection.”
While this approach has been embraced by the Singapore courts (and arbitral tribunals), a 12.67
divergence has emerged at the Singapore High Court level on the primary factors relevant
to determining the parties’ implied choice of law to govern the arbitration agreement, and
in particular whether the parties’ choice of substantive law or seat of arbitration is the better
indicator as to what law the parties intended should govern the interpretation and validity
of the arbitration agreement. Consistent with the view which has taken hold in England,
Steven Chong JA recently held in BCY v BCZ thar:
Therefore, where the arbitration agreement is part of the main contract, I would hold, adopt-
ing Sulamérica, that the governing law of the main contract is a strong indicator of the govern-
ing law of the arbitration agreement unless there are indications to the contrary. The choice
of a seat different from the law of the governing contract would not in itself be sufficient to
displace that starting point.”
In other words, the substantive law of the contract is presumed to govern the arbitration 12.68
agreement in the absence of an express choice by the parties and special circumstances (such
as the substantive law of the contract rendering the arbitration agreement void as was the
case in SulAmérica).® That is, parties are assumed to have intended that the whole of their
relationship would be governed by the same system of law.
A different conclusion was reached by Assistant Registrar Shaun Leong Li Shiong, however, 12.69
in a 2014 decision in FirstLink Investments Corp Ltd v GT Payment Pte Ltd (‘FirstLink’).* In
that case, the Assistant Registrar considered that the parties’ choice of seat for the arbitration
was a clearer signal of their intentions regarding the law applicable to the interpretation and
validity of the arbitration agreement. Thus, the High Court ruled:
In the absence of indications to the contrary, the reasons above would ordinarily compel the
law to find that parties have impliedly chosen the law of the seat as the proper law to govern the
arbitration agreement, in a direct competition between the chosen substantive law and the law
of the chosen seat of arbitration. All things being equal, the mere fact of an express substantive
law in the main contract would not in and of itself be sufficient to displace parties’ intention
to have the law of the seat be the proper law of the arbitration agreement.*°

8 [2012] Lloyd's
Rep671.
ed 89)at para 9.
* ayarome 89) a & Ors v Cruz City 1 Mauritius Holdings (2012)
25; upheld inAsranovia Ltd
EWHC 3702 (Comm), and in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Company Ltd
sa shpat (Comm).

- nies aehcoeeeen iypled bsAtrprcls Lal On.» CrvnCity| Mamrisea Fokdng 2012)
EWHC 3702 (Comm), and in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Company Ltd
(2013] EWHC 4071 (Comm).
% [2014] SGHCR 12.
98 FirstLink
(n 94) at(16).

231
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)

12.70 There will continue to be a degree of doubt on this as a matter of Singapore law unless and
until the Singapore Court of Appeal is asked to decide the point.
12.71 Should that happen, the Court may bear in mind that the separability principle is a fiction
created in order to deal with a specific problem. It is intended to serve, in the words of Steven
Chong J in BCY v BCZ ‘the narrow though vital purpose of ensuring that any challenge that
the main contract is invalid does not, in itself, affect the validity of the arbitration agree-
ment ’.° It is not real; the arbitration clause is often not actually separate from the remainder
of the contract in which it sits; it is merely separable for one particular purpose. Presumably,
that is why contract draftsmen (and those who drafted the SIAC Model Clause) rarely spec-
ify the law applicable to the arbitration agreement. Many would assume that is unnecessary
because the applicable law clause applies to the entire contract, including the dispute reso-
lution provisions therein unless otherwise specified.
12.72 This commercial reality is reflected in the reasoning of the English Court of Appeal in
SulAmérica (and the Singapore High Court in BCY v BCZ):
It has long been recognized that in principle the proper law of an arbitration agreement which
itself forms part of a substantive contract may differ from that of the contract as a whole, but it
is probably fair to start from the assumption that, in the absence of any indication to the con-
trary, the parties intended the whole oftheir relationship to be governed by the same system oflaw.
It is common for parties to make an express choice of law to govern their contract, but unusual
for them to make an express choice of the law to govern any arbitration agreement contained
within it; and where they have not done so, the natural inference is that they intended the
proper law chosen to govern the substantive contract also to govern the agreement to arbi-
trate.?” (Emphasis added.)

12.73 ‘The limited purpose of the separability doctrine is expressly memoralized in the 1985
UNCITRAL Model Law and thus Singapore law. Art 16(1) of the 1985 UNCITRAL Model
Law provides as follows:
Article 16. Competence of arbitral tribunal to rule on its jurisdiction

(1) The arbitral tribunal may rule on its own jurisdiction, including any objections with respect
to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause
which forms part of a contract shall be treated as an agreement independent of the other terms
of the contract. A decision by the arbitral tribunal that the contract is null and void shall not
entail 7pso jure the invalidity of the arbitration clause. (Emphasis added.)%8
12.74 Thus, the purpose of the separability doctrine is to help protect the tribunal’s competence to
determine its own jurisdiction. It would appear to have less relevance to the determination
of the law applicable to the arbitration agreement.

2. Rule 31.2

The Tribunal shall decide as amiable compositeur ot ex aequo et bono only if the parties have
expressly authorised it to do so.

a a Nn
% BCYv BCZ(n 92) at [61].
9%” SulAmérica (n 89) at [11].
98 1985 UNCITRAL Model Law, Art 16(1), IAA, s3(1).

232
 B. Rule 31—Applicable Law, Amiable Compositeur, and Ex Aequo et Bono

a. The tribunal’s power to decide as amiable compositeur

Consistent with Singapore law,%? Rule 31.2 of the 2016 SIAC Rules allows a tribunal,
if 12.75
expressly authorized by the parties to do so, to decide a dispute as amiable compositeur (liter-
ally, as a friendly conciliator or decision maker, albeit one that must still apply the law) or
on the basis of ex aequo et bono principles (which allow an arbitrator to decide a matter in
accordance with what is considered fair and just in the circumstances),'
While the terms ‘amiable compositeur and ‘ex aequo et bono are often considered to be tauto- 12.76
logical,'®" both are usually included in arbitration rules as they may have different connota-
tions in certain legal systems.'? As for Singapore, the Law Reform Committee tasked with
developing the LAA in 1993 considered the concepts to be distinct and, moreover, that they
should be narrowly applied under Singapore law.
Specifically, the Law Reform Committee recommended that amiable compositeur should be 12.77
defined as meaning ‘the power of the arbitrator to deviate from strict principles of the law
where equity and fairness requires such a deviation’.'°3 The alternative view that an amiable
compositeur has a discretion to apply the law of his or her choosing, the lex mercatoria, or
indeed no law at all, was rejected by the Law Reform Committee.'® Consistent with that
approach, it is arguable that an amiable compositeur under the SIAC Rules must apply the
applicable law pursuant to Rule 31.1," and rule in accordance with the terms of the con-
tract according to Rule 31.3.'° The amiable compositeur, however, need not apply the chosen
law or the terms of the contract strictly if that would give rise to an unfair or inequitable
result.'” In the words of the Hong Kong High Court in a recent decision:
Amicable compositeurs may, when authorized to do so, ‘decide in equity which may mean
applying the relevant rules of law to the dispute, but ignoring any rules that are purely formal-
istic, or rules which appear to operate harshly or unfairly on the facts of the particular case.'°8

99 IAA, s 3(1); 1985 UNCITRAL Model Law, Art 28(3): “The arbitral tribunal shall decide ex aequo et
bono or as amiable compositeur only if the parties have expressly authorised it to do so.’ In contrast, AA, s 32(3)
provides: “The arbitral tribunal may decide the dispute, if the parties so agree, in accordance with such other
considerations as are agreed by them or determined by the tribunal.’ M Hwang SC, L Boo et al, ‘Singapore
National Report (2011)’ in J Paulsson (ed), /nternational Handbook on Commercial Arbitration (Kluwer Law
International 1984, last updated May 2011, Supplement No 64) 31, stating in relation to domestic arbitrations
in Singapore governed by the AA, ‘while contracts may give arbitrators the power to act as amiable compositeur
or make awards exaequo et bono, it is uncertain whether the courts would uphold awards made in this manner’.
100 Freely
Pte Ltd v Ong Kaili and others [2010] 2 SLR 1065 at para 4.
'0' French courts, for instance, apparently consider the concepts to be identical: Y Derains and E A Schwarz,
A Guide to the ICC Rules ofArbitration (2nd edn, Kluwer Law International 2005) 246.
102 D Caron and L Caplan, The UNCITRAL Arbitration Rules: ACommentary (2nd edn, OUP 2012) 119.
103 The Singapore Academy of Law’s Law Reform Committee's Sub-Committee Report on the Review of
Arbitration Laws (1993) para 70.
104 Singapore Academy of Law, Report on the Review of Arbitration Laws (n 103) paras 68-70.
105 SIAC Rules (2016), Rule 31.1: “The Tribunal shall apply the law or rules of law designated by the

106 SIAC Rules (2016), Rule31.3: ‘Jn allcases, theTribunal shall decide in accordance with the terms ofthe
...’ (emphasis added).
gro eee oe leo re
v Coderre
in Coder [2008] QCCA 888 (Canada) held that an arbitrator
teur
acting asan amiable composiunder 1985 UNCI TRAL
Model Law, Art 28(3), may on the basis of fairness,

ract
Turner
cont .
and Mohtashami, Rules (n88) para 6.80, similarly opine that anamiable
LCIA Arbitration
be able to of the contract.
——
American er seen HCCT 60/2015 (decision of 30August 2016) at[9].
233
 The Powers ofthe Tribunal (SIAC Rules 27 and 31)

12.78 The aforementioned 1993 Law Reform Committee considered that an ex aequo et bono
award is one based on equitable standards ofjustice.'°® But that does not mean the tribunal
has licence to abandon all legal principles. The Law Reform Committee noted that ‘the arbi-
trator should indicate some objective basis for the standards and equity of good sense that
he had applied in reaching his decision’.""° Further, an arbitrator proceeding ex aequo et bono
under the SIAC Rules must have regard to the terms of the contract and applicable trade
usages, which expressly apply ‘[iJn all cases’.""' The tribunal must also observe the rules of
natural justice and comply with applicable mandatory law and public policy.'"
12.79 Parties occasionally seek to set aside an award on the grounds that the tribunal decided the
dispute based on equity and fairness rather than through an application of the parties’ agreed
choice of law. The Hong Kong High Court recently rejected an argument that the errors of
law allegedly committed by a tribunal were so serious as to amount to a conscious disregard
of the agreed New York law done ‘intentionally’ so that the tribunal could render a decision
that it considered to be fair and equitable in the circumstances.''? The High Court refused
to accept the argument that the majority of the tribunal had been intellectually dishonest
(which it considered would require compelling evidence, rather than determined on a mere
balance of probabilities). Further, the invocation of equitable considerations by the tribu-
nal is not properly regarded as automatically equivalent to a decision improperly made ex
aequo et bono."'4 Nonetheless, decisions on occasion have been set aside (or annulled) on the
grounds that a tribunal has lost sight of the agreed applicable law and instead decided a dis-
pute with ‘reference to equity, to “universal” principles of justice and loyalty, such as amiable
compositeurs might invoke’."'5

3. Rule 31.3

In all cases, the Tribunal shall decide in accordance with the terms of the contract, if any, and
shall take into account any applicable usage of trade.
a. Terms ofthe contract and trade usages
12.80 Consistent with Singapore law,''6 Rule 31.3 memorializes one of the perceived advantages
of arbitration over other forms of dispute resolution, namely that the tribunal must always
apply the terms of the contract agreed by the parties and have regard to relevant trade or busi-
ness practices when determining the dispute.'"7
12.81 Rule 31.3 refers to the contract, ‘if any’, as there may be no contract to apply if the dispute
arises, for instance, under an investment treaty.''8

109 Singapore Academy of Law, Report on the Review of Arbitration Laws (n 103) para 71.
"10 Singapore Academy of Law, Report on the Review of Arbitration Laws (n 103) paras 71-76,
"1 SIAC Rules (2016), Rule 31.3.
"12 SIAC Rules (2016) Rules 19.1, 27, and 41.2.
"13 American International Group, Inc (n 108), at [12, 16].
"4 Amco Asia Corporation etalv The Republic ofIndonesia (Decision on Annulment, 16 May 1986, 1 ICSID
Rep 509 at [516]). See also C Schreuer ‘Decisions Ex Aequo et Bono under the ICSID Convention’, ICSID
—— Anih Volume II Issue 1, 37.
, for instance, Klockner Industrie-Anlagen GmbH v Republic of Cameron (Decisi
May 1985, 2 ICSID Rep 95 at [77]. oh font naieiiaakeseagies
"6 TAA, s 3(1), 1985 UNCITRAL Model Law, Art 28(4).
"7 Derains and Schwarz, ICC Rules ofArbitration (n 101) pp 241-42.
“i SIAC Rules (2016), Rule 3.1(d) includes an explicit reference to disputes arising out of an ‘investment
treaty’.

234
 B. Rule 31—Applicable
Law,Amiable Compositeur, and Ex Aequo et Bono

The tribunal shall also ‘take into account’ any trade usages applicable to the transaction. 12.82
Trade usages include those arising out of the parties’ own course of dealing and those regu-
larly followed by parties engaging in business in a particular trade."'9
The first part of Rule 31.3 is drafted in mandatory terms (ie the tribunal ‘shall decide’ 12.83
in accordance with the terms of the contract).'2° In contrast, the tribunal shall ‘take into
account’ relevant trade usages. These different formulations of the tribunal’s duty in relation
to the terms of the contract and trade usages confirm that the latter (ie trade usages) must
yield to the former (ie the contract) to the extent that there is a conflict.

atl

Se sisok goer esd gohiide OALE 201 YEA

meetstieil5ai baat aelb2.A On riicive oH
 13
INTERIM AND EMERGENCY RELIEF
(SIAC RULE 30)

A. Rule 30.1—Interim Relief from a 7. Schedule 1—paragraph 6 13.44

Tribunal 13.03 8. Schedule 1—paragraph 7 13.46
1. Rule 30.1 13.03 9. Schedule 1—paragraph 8 13.49

B. Rule 30.2—Application for 10. Schedule iin 9 :o

Emergency Relief from an Emergency - cate i—pamgraph 10
é . Schedule 1—paragraph 11 13.58
Asbisratoe poral 13. Schedule 1—paragraph 12 13.59
SPOS ee 1—paragraph 1 ae 14. Schedule 1—paragraphid13 13.60
2. Schedule 13.26 15. Schedole bs 13.62
3. Schedule 1—paragraph 2 13.31 2, PEneaiee 1b DaraeaP
4. Schedule 1—paragraph 3 13.34 C. Rule 30.3—Interim Relief from a
5. Schedule 1—paragraph4 13.38 Court 13.64
6. Schedule 1—paragraph 5 13.39 1. Rule 30.3 13.64

13.01 Interim or emergency relief is intended to preserve the status quo between parties pending
the resolution of a dispute.'
13.02 A party to a SIAC arbitration has three options for obtaining interim relief during the course
of an arbitration. As discussed in this chapter, depending on the circumstances in which the
relief is sought, a party can seek interim relief from:
(a) the tribunal (Rule 30.1);
(b) an emergency arbitrator (Rule 30.2 and Schedule 1); or
(c) acourt of competent jurisdiction (Rule 30.3).

A. Rule 30.1—Interim Relief from a Tribunal

1. Rule 30.1

The Tribunal may, at the request of a party, issue an order or an Award granting an injunction
or any other interim relief it deems appropriate. The Tribunal may order the party requesting
interim relief to provide appropriate security in connection with the relief sought.
“

' In the words of Justice Lee Seiu Kin of the Singapore High Court, an interim order ‘seeks to
the legal rights and obligations of parties before the dispute is completely disposed of’, PT Pukuafu Indah v
Newmont Ltd {2012] 4 SLR 1157 (Singapore High Court) para 20.

236
 A. Rule 30.1—Interim Relief from a Tribunal

The first, and the most commonly used, option for obtaining interim relief is for a party to 13.03
request it from the tribunal. Such relief can only be granted, however, if the tribunal has been
constituted. If a party needs interim relief prior to the constitution of the tribunal, and the
matter is urgent, it can apply for interim relief from an emergency arbitrator (discussed in
part B of this chapter) or a court of competent jurisdiction (discussed in part C).
a. The forms ofinterim relief that may be granted by a tribunal
Consistent with Singapore law,? Rule 30.1 empowers a tribunal to grant ‘an injunction or 13.04
any other interim reliefitdeems appropriate’. An injunction is an order requiring a party to
do or refrain from doing something.
Rule 27, which enumerates a number of tribunal powers, identifies some of the types of 13.05
interim relief chat a tribunal may grant. It includes an order requiring the preservation, stor-
age, sale, or disposal of property; a direction that a party ensure that any award which may
be made is not rendered ineffectual by the dissipation of assets; an order that a party provide
security to cover the other party’s legal or other costs; and an order that a party provide secur-
ity for all or part of the amount in dispute.? These powers are consistent with those available
to a tribunal under Singapore law.‘
In the exercise of such powers, SIAC tribunals (including emergency arbitrators) have: 13.06

(a) ordered a party not to dispose of certain assets (which is often referred to as a freez-
ing injunction) for a period of time or until the tribunal has determined the issues in
dispute;
(b) issued an anti-suit injunction prohibiting a party from commencing a court action or
another arbitration;>
(c) ordered a party to make an interim payment;
(d) ordered a party not to call on a bank guarantee;
(ec) permitted a party to sell a shipment of coal that had not been accepted by the respondent
and which was deteriorating at a Chinese port;
(f) ordered the protection of confidential information;
(g) injuncted a party from selling shares in a company;
(h) ordered a party not to destroy certain documents that may be relevant to the dispute;
(i) ordered a party to disclose financial records to a financial institution;
(j) ordered the inspection and preservation of evidence; and
(k) directed a shipyard to release a ship on which it had been working.

2 IAA, s 12(1)(i); AA, s 31(1)(d).

3 SIAC Rules (2016), Rule 27(f), (j), (k), and (1). See Ch 12,partA. ee
4 IAA, s 12(1); AA, s 28(2). .
5 Anti-suit injunctions have also been granted by ICC arbitral tribunals: A Yesilirmak, ‘Interim and
Measures in ICC Arbitral Practice, 1999-2008’ in Special Supplement 2011: Interim,
and Emergency Measures in ICC Arbitration 8.
In ICC Case No. 8307 seated inGeneva, the sole arbitrator issued an ona poe ana
which enjoined a party from pursuing domestic judicial proceedings it had brought against the other parties
in relation tothe same dispute which was the subject ofthe arbitration. Similarly, a three-person tribunal in
that the
an ICDR arbitration seated in Miami ordered in an unpublished Partial Award of 10 yim 2002
respondent refrain from commencing inthecourts ofVenezuela anyclaims arising outo contracts which were
the subject ofthearbitration. Available at <http://www.arbitration-iccé org/media/4/51236275887736/medi-
a012178544334520back_to_basics_eg.pdf > (accessed 21 April 2017).
237
 Interim and Emergency Relief (SIAC Rule 30)

b. Criteria to be considered by a tribunal when granting interim relief

13.07 In contrast for instance to the rules of the HKIAC and the Australian Centre for International
Commercial Arbitration (ACICA),® the SIAC Rules do not prescribe specific criteria a tribu-
nal should apply when determining whether to grant interim relief. Rather, a SIAC tribunal
has a broad discretion to grant the interim relief it ‘deems appropriate’. It could, however,
seek guidance from the 2006 amendments to the 1985 UNCITRAL Model Law. While the
amendments do not form a part of Singapore law, they suggest that when determining a
request for interim relief, a tribunal should consider whether:’
(a) harm is likely to result if the interim measure is not ordered which would not be
adequately reparable by an award of damages;
(b) such harm substantially outweighs the harm that is likely to result to the party against
whom the measure is directed if the measure is granted; and
(c) there isa reasonable possibility that the requesting party will succeed on the merits of the
claim.Thus, the criteria considered by an arbitral tribunal (and emergency arbitrator)
seated in Singapore when determining a request for interim relief may be different to
the factors considered by the Singapore High Court when determining a similar appli-
cation.® That is, arbitral tribunals (and emergency arbitrators) are not constrained by
municipal court practice when considering requests for interim relief.

c. The posting ofsecurity

13.08 The tribunal may order the party requesting interim relief to provide appropriate security in
connection with the relief sought. The security is intended to compensate the party against
which interim relief is ordered for any harm suffered as a result of the interim measure.
13.09 The precise form and amount of security will be determined by the tribunal. Usual forms
include the provision of a deposit, a bank guarantee, a bond, ora letter of credit.
d. Ex parte applications to a tribunal for interim relief
13.10 Some commentators have argued that interim relief should not be sought on an ex parte basis
(ie without notice to the other party) on the grounds that ex parte relief is incompatible with
the consensual nature of arbitration and the need for due process.’ Those tasked with negoti-
ating the 2006 amendments to the 1985 UNCITRAL Model Law agreed on a compromise
procedure whereby a party can obtain interim relief ex parte while ensuring that the party
that is the subject of the order will quickly have an opportunity to be heard."°

® HKIAC Rules (2013), Art 23.4; ACICA Rules (2016), Art 33.3.
” 2006 UNCITRAL Model Law, Art 17A(1). The 2006 UNCITRAL Model Law, Art 17(A)(2) provides
that this criteria will only apply to orders for the preservation of evidence to the extent the arbitral tribunal
considers appropriate.
® See part C of this chapter for a discussion on the criteria considered by the Singapore High Court for
interim relief applications.
° Hvan Houtte, “Ten Reasons Against a Proposal for ExParte Interim Measures of Protection in Arbitration’
(2004) 20(1) Arb Intl 85, 89, See also N Blackaby, C Partasides et al (eds), Redfern and Hunter on International
Arbitration (6th edn, OUP 2015) paras 5.33 and 7.21-7.23.
"0 2006 UNCITRAL Model Law, Arts 17B and 17C provide for a three-stage process. First, a party may
obtain a ‘preliminary order’ without notice to the other party. Second, the other party must then be immedi-
ately informed of the request for the interim measure and provided all relevant documents. Third, the party
against which the preliminary order is directed must be given an opportunity to present its case at the earliest
practicable time. The preliminary order is binding on the parties, although not enforceable by a court. Similarly,

238
 A. Rule 30.1—Interim Relief from a Tribunal

Neither the SIAC Rules nor Singapore law expressly allow or prohibit the awarding of 13.11
interim relief by an ordinary arbitral tribunal on an ex parte basis." It is clear, however, that
a request for interim relief cannot be made to an Emergency Arbitrator ex parte,'? and more
than likely the same would hold for a request to an ordinary arbitral tribunal.
e. Order or award?
SIAC Rule 30.1 provides that a tribunal may grant interim reliefin the form of an order or 13.12
an award.'?That notwithstanding, as a matter of Singapore law, a decision on interim relief
is not enforceable as an award. Both the IAA and AA define an ‘award’ as ‘any decision of the
tribunal on the substance of the dispute’.'* Further, the IAA expressly provides that an order
or direction made under section 12 of the IAA, which among other things allows a tribunal
to grant an interim injunction, is not an award.'®

Thus, in PT Pukuafu Indah v Newmont Lid the Singapore High Court held that it did not 13.13
have jurisdiction to set aside an anti-suit injunction ordered by an arbitral tribunal. The High
Court concluded that the tribunal’s decision on interim relief was not an ‘award’ under the
LAA and thus could not be set aside.'®

A decision on interim relief may also not be sufficiently final to qualify as an award capable 13.14
of enforcement in other jurisdictions."
Even though a decision on interim relief cannot be considered an award under Singapore 13.15
law, it is still enforceable in Singapore. The IAA and AA provide that a tribunal's orders are
enforceable with the leave of the High Court in the same manner as if they were orders made

the Swiss Rules (2012), Art 26(3) allows a party to obtain a preliminary order on interim measures from the
tribunal on an ex parte basis.
'! SIAC Rules (2016), Rule 19.6 provides that: ‘All statements, documents or other information supplied
to the Tribunal and the Registrar by one party shall simultaneously be communicated to the other party.’ It
was pointed out in the first edition of this book that it is open to question whether an application for interim
relief can be considered a ‘statement’, ‘document’, or other ‘information’. The point has not been clarified in
the 2016 SIAC Rules. In contrast, ICSID Arbitration Rules (2006), Rule 39(4) more clearly prohibits ex parte
applications for relief: “The tribunal shall only recommend provisional measures, or modify or revoke its recom-
mendations, after giving each party an opportunity of presenting its observations.’
'2 SIAC Rules (2016), Sch 1, para 1: “The party [requesting emergency relief] shall, at the same time as it files
the application for emergency interim relief, send a copy of the application to all other parties.’
'3 A similar approach is followed by other arbitral institutions: ICC Rules (2017), Art 28(1); ACICA Rules
(2016), Art 33.1. In contrast, LCIA Rules (2014), Art 25.1 refers to the power of a tribunal to ‘order’ interim
relief. An ICSID tribunal is only empowered to ‘recommend’ provisional measures: ICSID Arbitration Rules,
Rule 39.
4 TAA, s 2(1); AA, s 2(1) (emphasis added).
15 TAA, s 2(1) defines an ‘award’ as a decision of the tribunal ‘on the substance of the dispute’ and includes any
‘interim, interlocutory or partial award but excludes any orders or directions made under section 12’ (emphasis
added). LAA, s 12(1)(i) empowers a tribunal to grant an interim injunction or any other interim measure.
Similarly, the AA specifically excludes orders or directions made under s 28 from the definition of an ‘award’.
6 PT Pukuafu Indah v Newmont Ltd [2012] 4 SLR 1157 (Singapore High Court) para 19. For a discussion
on how a decision can be reversed even ifit isnot anaward, see Ch 2.
7 Blackaby, Partasides et al, Redfern and Hunter (n 9) para 7.19: ‘interim measures ordered by an arbitral
tribunal do not, by definition, finally resolve any point in dispute. An order or award of interim measures is
therefore unlikely to satisfy the requirement of finality under the New York Convention, which may render
it internationally’. G Kaufmann-Kohler and T Schultz, Online Dispute Resolution: Challenges
for Contemporary Justice (Kluwer Law International 2004) 156-57: ‘the finality oftheaward appears to be
the decisive test: itisonly ifthe parties intend a decision tobe binding like a judgment that it constitutesan
award...’.

239
 Interim and Emergency Relief (SIAC Rule 30)

by a court.'8 Should such leave be granted by the High Court, a failure to comply with a
tribunal’s order may amount to contempt ofcourt.
13.16 And while a SIAC tribunal does not have imperium to ensure compliance with its orders,
there may still be consequences for non-compliance with an interim measure ordered by a
tribunal. In particular, costs could be ordered against the offending party. A party may also be
liable in damages for any losses caused by failure to comply with an interim measure.

B. Rule 30.2—Application for Emergency Relief from

an Emergency Arbitrator
1. Rule 30.2

A party that wishes to seek emergency interim relief prior to the constitution of the Tribunal
may apply for such relief pursuant to the procedures set forth in Schedule 1.
a. Overview ofthe emergency arbitrator procedure
13.17 Parties in international arbitration in need of urgent interim relief at the beginning of an
action and prior to the constitution of the arbitral tribunal can seek such relief from an
appropriate court. This is considered in part C of this chapter. Approaching a court, however,
may be costly; lead to significant delays, particularly if there is an appeal process; expose the
party to courts that may not necessarily be neutral; and risk the dispute being made public
notwithstanding any agreed confidentiality obligations.'? In short, approaching the courts
may undermine the very reasons why the parties chose arbitration to resolve their disputes.
13.18 Rule 30.2 is an innovation introduced in the 2010 SIAC Rules (and continued in the 2013
and 2016 SIAC Rules) to allow a party to seek interim relief from an emergency arbitrator
appointed by the SIAC President prior to the constitution of the tribunal. A number of other
institutional rules now contain similar provisions.?°
13.19 Access to an emergency arbitrator is proving to be popular with users of SIAC arbitration. As
of 31 January 2017, SIAC had received 54 applications since 1 July 2010 for an emergency
arbitrator to be appointed, of which 22 had been granted in full, four granted in part, and
another four by consent. In six instances, the application was withdrawn, 14 were rejected,
and one was pending at the time of writing.
13.20 The decisions of emergency arbitrators have also been effective. SIAC has reported that the
parties in the first 21 completed cases in which an emergency arbitrator was appointed either

'8 TAA, s 12(6); AA, s 28(4). Similarly, the Arbitration Act 1996 (England), s 42 gives courts the power to
enforce orders of an arbitral tribunal and similar provisions exist in Switzerland (Private International Law
Act 1987 (Switzerland) (as revised in 2014), Art 183(2)) and Germany (Zivilprozessordnung (Code of Civil
Procedure) (Germany), s 1041(2)).
'? However, these risks are not high if the court application is made in Singapore. As explained in Chs 1 and
2, Singapore boasts an independent and impartial judiciary; specialist judges who deal with arbitration-related
matters and who have developed a reputation for being pro-arbitration; and mechanisms for ensuring that any
obligation of confidentiality attaching to an arbitration is not compromised by a court application.
20 The ICDR adopted emergency arbitrator provisions in 2006 (ICDR Rules (2009), Art 37), followed by
earn ane the Netherlands Arbitration Institute (2010), SLAC (2010), ACICA (2016), ICC (2012), and

240
 B. Rule 30.2—Application for Emergency Relief

complied with the emergency arbitrator's award voluntarily or settled the dispute soon there-
after.*' The trend has continued in recent years with parties reportedly voluntarily complying
with most tribunal decisions including emergency arbitrator decisions.

The SIAC emergency arbitrator procedure is designed to allow a party to obtain a decision 13.21
quickly. Amendments made to Schedule 1 of the SLAC Rules in 2016 seek to accelerate the pro-
cess even further. Whereas under the 2010 and 2013 SIAC Rules, the SIAC President must seek
to appoint an emergency arbitrator within one ‘business’ day of SLAC’s receipt of an application
for emergency relief and the payment of the requisite fees, the SLAC President now has just one
day to do so. Similarly, while under the 2010 and 2013 SIAC Rules the emergency arbitrator is
required to establish a procedural schedule within two ‘business days’ of his or her appointment,
the current rules provide that it must be done in two days regardless of whether they are busi-
ness days. Through another amendment made in 2016, the SIAC Rules stipulate that a decision
must be made by the emergency arbitrator within 14 days from the date of his or her appoint-
ment unless extended by the Registrar.”? In practice, even before these amendments were made,
emergency arbitrators have (at the time of writing) on average issued an interim order within two
and a half days of the receipt of an application for emergency relief.?3 Awards are usually issued by
emergency arbitrators between eight to ten days after the parties have been heard on the request
for emergency relief, and has been as little as two days.”4
As a matter of Singapore law, an emergency arbitrator is considered to be an ‘arbitral tribu- 13.22
nal’,?° with all the attendant powers of that office. However, the decision of an emergency
arbitrator under the SIAC Rules—even if labelled as an ‘award’28—is not enforceable as an
‘award’ in Singapore.?’
As explained in paragraphs [13.12—13.15], not only does Singapore law expressly exclude 13.23
decisions on interim relief (which is all an emergency arbitrator can grant) from the statutory
definition of an award,”* but finality is generally considered to be a necessary characteristic of
an award.?° Yet an emergency arbitrator's decision is not final. It can be modified or vacated

2" 'N Vivekananda, “Ihe SIAC Emergency Arbitrator Experience’, available at: <http://www.siac.org.
sg/2013-09-18-01-57-20/2013-09-22-00-27-02/articles/338-the-siac-emergency-arbitrator-experience>
(accessed 25 September 2017).
22 This brings the SIAC Rules into line with other institutions which offer the emergency arbitration service.
SCC Rules (2017), App II, Art 8(1) requires an emergency arbitrator to render a decision within five business
days of the referral of the matter to the emergency arbitrator. The Swiss Rules (2012), Art 43(7) and ICC Rules
(2017), App V, Art 6(4) require an emergency arbitrator to render a decision within 15 days of receiving the file.
23 N Vivekananda, “The SIAC Emergency Arbitrator Experience’ (n 21) 4.
24 The Emergency Arbitrator and Expedited Procedure in SIAC: A New Direction for Arbitration in Asia
(2015), available at: <http://www.siac.org.sg/2013-09-18-01-57-20/2013-09-22-00-27-02/articles/420-the-
emergency-arbitrator-and-expedited-procedure-in-siac-a-new-direction-for-arbitration-in-asia> (accessed 21
ril 2017).
“S hi 2(1): ‘ “arbitral tribunal” means a sole arbitrator or a panel of arbitrators or a permanent arbitral
institution, and includes an emergency arbitrator appointed pursuant to the rules of arbitration agreed to or
by the parties including the rules of arbitration of an institution or organisation’ (emphasis added). —
Whether a particular decision amounts to an order or an award, it isthe ‘substance ofthe ruling thatis
Ltd (2012) 4 SLR 1157 (Singapore
decisive, not the label given by the tribunal’: PT Pukuafu Indah v Newmont
Court) para 14. ]
Thisisnotwithstanding Rule 1.3 ofthe SIAC Rules (2016), which includes decisions of anemergency

28 TA, ss 2(1)Sand 12(1)(i);(i) AA,

AA ss2( 2(1yand28
4
radTA dspaleelitetan 1 provides that ‘any Award shall befinal and binding onthe parties from the
Art V(e) and 1985 UNCITRAL Model Law, Art 36(1)(v) allows
date itismade’. The New York Convention,

241
 Interim and Emergency Relief (SIAC Rule 30)

by the emergency arbitrator or vacated by the tribunal once constituted; and will in any
event cease to be binding after 90 days or when the tribunal makes a final award.” Further,
an ‘award’ is statutorily defined under Singapore law as being a decision on the ‘substance of
the dispute’, which an emergency arbitrator should not do.*’ Thus, the [CC Rules (2017)
expressly provide that an emergency arbitrator is to issue a decision in the form of an order
(rather than as an award).32

13.24 That is not to say that a decision of an emergency arbitrator is not enforceable, As noted in para-
graph [13.15], the orders of a tribunal, including those of an emergency arbitrator, are enforce-
able in Singapore with the leave of the Singapore High Court.”
13.25 The procedures to be followed by an emergency arbitrator are set out in Schedule | to the SIAC
Rules (2010, 2013, and 2016), which is considered next.

2. Schedule 1—paragraph 1

A party that wishes to seek emergency interim relief may, concurrent with or following the filing of
a Notice of Arbitration but prior to the constitution of the Tribunal, file an application for emer-
gency interim relief with the Registrar. The party shall, at the same rirne as if files the application
for emergency interim relief, send a copy of the application to all other parties. ‘Ihe application for
emergency interim relief shall include:
(a) the nature of the relief sought;
(b) the reasons why the party is entitled to such relief; and
(c) astatement certifying that all other parties have been provided with a copy of the application
or, ifnot, an explanation of the steps taken in good faith to provide a copy or notification to
all other parties.

a. Notice requirements
13.26 An application for the appointment of an emergency arbitrator may be filed concurrently with
or following the filing of a Notice of Arbitration.
13.27 A party cannot apply for an emergency arbitrator in anticipation of arbitral proceedings that
have not been commenced, nor can it do so after the tribunal has been constituted.” An applica-
tion also cannot be made ex parte. The applicant must send it to the SIAC Registrar and notify
all other parties of the request.

a court to refuse recognition of an award that ‘has not yet become binding’. [AA, s 19B and AA, » 44 provide
that an award is ‘final and binding’.
30 SIAC Rules (2016), Sch 1, paras 7-8.
31 TAA, s 2(1); AA, s 2(1).
2 ICC Rules (2017), Art 29(2) and App V, Art 6(1).
33 JAA, s 12(6); AA, s28(4).
* In contrast, some institutional arbitration rules permit the appointment of an emergency arbitrator before
an arbitration is commenced: ICC Rules (2017), Art 29(1); SCC Rules (2017), App IL, Art 1,1 and Swiss Rules
(2012),
Art43(3). As explained in part C of this chapter, a party can appl
toay
court for inverim relief after the
constitution of a tribunal in ‘exceptional circumstances’.
35 SIAC Rules (2016), Sch 1, para 1(c) provides that the application must include a statement that all
other parties ‘have been provided with a copy of the application’. This suggests the other parties must be
notified prior to the sending of the application to the Registrar. The remaining words ofthesame sub-
paragraph (‘steps taken in good faith to provide a copy’), however, and Rule 3.4 indicate that it would be
acceptable for the other parties to be notified of the request for emergency relief at the same time as it is
sent to the Registrar.

242
 B. Rule 30.2—Application for Emergency Relief

An application for emergency relief should:3¢ 13.28

(a) state the nature of the relief sought;
(b) provide reasons why the relief is required on an emergency basis;
(c) explain why the granting of the requested reliefisappropriate;
(d) state that all other parties have been notified or provide an explanation as to the steps
taken in good faith to notify the other parties; and
(e ~ be accompanied by the requisite filing fee and deposit on costs.
The applicant need not set out its case for emergency relief in full. It will have a further 13.29
opportunity to be heard by the emergency arbitrator, should one be appointed, including
through the making of written submissions. With that said, an application needs to be suf-
ficiently comprehensive so as to convince the SIAC President that the request should be
granted.
b. Types ofemergency relief that can be granted by an emergency arbitrator
Part A of this chapter addresses the types of interim relief that an ordinary arbitral tribunal 13.30
may grant, the criteria that it may consider when determining whether to grant such relief,
and the security it may require to be posted in support of an application for interim relief
pursuant to Rule 30.1. Similar principles apply to a request for interim relief from an emer-
gency arbitrator,?’ subject to the additional requirement—by definition—that there be an
emergency which necessitates the granting of relief prior to the constitution of the tribunal.

3. Schedule 1—paragraph 2

Any application for emergency interim relief shall be accompanied by payment of the non-
refundable administration fee and the requisite deposits under these Rules towards the
Emergency Arbitrator’s fees and expenses for proceedings pursuant to this Schedule 1. In
appropriate cases, the Registrar may increase the amount of the deposits requested from the
party making the application. If the additional deposits are not paid within the time limit set
by the Registrar, the application shall be considered as withdrawn.
a. Filing fee and deposit on costs
An application for emergency relief must be accompanied by payment of the requisite 13.31
administration fee, which is set by the Registrar and can be found on the SIAC website.
At the time of writing, the administration fee for an Emergency Arbitrator application is
$$5,000 for parties based overseas and $$5,350 for parties based in Singapore (who have to
pay a7 per cent goods and services tax).
In addition, the application should be accompanied by payment of a deposit of $$30,000 to 13.32
cover the emergency arbitrator's fees and expenses.3* The emergency arbitrator's fees is fixed
at $$25,000 unless the Registrar determines otherwise.3? The remaining $$5,000 required to
be paid on deposit is intended to cover the emergency arbitrator's estimated expenses. This
compares favourably to the appointment of an emergency arbitrator under the ICC Rules

3© SIAC Rules (2016), Sch 1, paras 1-2.

7 By way ofillustration, ACICA Rules (2016), Sch 1, para 3.5lists thecriteria to beconsidered by anemer-
gency arbitrator appointed under the ACICA Rules when considering whether to grant interim relief.
38 The SIAC Rules were amended in 2016 to make clear that the deposit must be paid at the time of the
ppbiccsien meicatirentn tnteppilcation Meshes. syprones bytheSAG Recriiens,
SIAC Scheduleof Fees.

243
 Interim and Emergency Relief (SIAC Rule 30)

(2017), which is subject to an initial fee of US$40,000, comprising US$10,000 for admin-
istrative expenses and US$30,000 to cover the emergency arbitrator's fees and expenses.*°
Previously, SIAC set the emergency arbitrator deposit with reference to the amount in dis-
pute, capped at 20 per cent of the maximum amount payable to a sole arbitrator, but no less
than $$20,000."" In practice, this proved problematic as the amount in dispute was often
not clear at the time an emergency arbitrator was appointed. Thus, SIAC has sought to avoid
any such complications (and potential delays resolving them) through setting a fixed fee of
§$25,000 for an emergency arbitrator unless the Registrar determines otherwise.
13.33 SIAC will refund the deposit should the application for the appointment of an emergency
arbitrator be rejected by the SIAC President. The administration fee is non-refundable:

4. Schedule 1—paragraph 3
The President shall, if he determines that SIAC should accept the application for emergency
interim relief, seek to appoint an Emergency Arbitrator within one day of receipt by the
Registrar of such application and payment of the administration fee and deposits.
a. Appointment ofan emergency arbitrator
13.34 The SIAC President must move quickly to determine whether to accept a request for an
emergency arbitrator and, if so, to make the appointment. If the SIAC President accepts
the application, he must ‘seek to’ appoint an emergency arbitrator within one day of
the Registrar’s receipt of the application and payment of the required filing fee and the
deposit.”
13.35 The SIAC Rules do not specify the circumstances in which the SIAC President will approve
an application for the appointment of an emergency arbitrator.*? The obvious key criterion
is whether the matter can or cannot wait until the constitution of the tribunal. Non-urgent
matters will not justify the appointment of an emergency arbitrator.
13.36 The President will consider submissions promptly received by either party on any qualifi-
cations that an emergency arbitrator should possess. Given the timing constraints, how-
ever, the President usually does not invite submissions from the parties before determining
whether an appointment is justified or who should be appointed.
13.37 The emergency arbitrator will be chosen from among the arbitrators on the SIAC Panel
of Arbitrators who have indicated their availability for emergency appointments. The
pool of arbitrators is identified on the SIAC website. The same factors which apply to the
appointment of a regular arbitrator (discussed in part E of Chapter 8) will apply to the SLAC
President's choice of an emergency arbitrator, including whether the parties have agreed any
specific qualifications that a tribunal member should possess.

40 ICC Rules (2017), AppV, Art 7(1).

“1 SIAC Schedule of Fees (1 August 2015).
42 SIAC Rules (2016), Sch 1, para 3. In contrast, the SIAC President had one ‘business’ day to make the
appointment under the 2010 and 2013 SIAC Rules. “
“3 In contrast, Swiss Rules (2012), Art 43(2) provides that an application for the appointment of an emer-
gency arbitrator will be rejected if ‘there is manifestly no agreement to arbitrate’ under the Swiss Rules or ‘it
appears more appropriate to proceed with the constitution of the arbitral tribunal and refer the Application
toit’.

244
 B. Rule 30.2—Application for Emergency Relief

5. Schedule 1—paragraph 4

If the parties have agreed on the seat of the arbitration, such seat shall be the seat of the pro-
ceedings for emergency interim relief. Failing such an agreement, the seat of the proceedings
for emergency interim relief shall be Singapore, without prejudice to the Tribunal’s determin-
ation of the seat of the arbitration under Rule 21.1.
a. The seat of the emergency interim relief
Paragraph 4 of Schedule 1 is intended to prevent time being wasted during the consideration 13.38
ofan interim relief application on the question as to where the arbitration has its legal seat.
It provides that if the parties have agreed on the seat of the arbitration, that place will be the
seat of the proceedings for the purposes of the emergency interim relief application. In the
absence of an express agreement on the seat of arbitration, however, Singapore will be treated
as the seat of the emergency interim relief proceedings. This default rule is without prejudice
to the tribunal's subsequent determination of the seat of arbitration. If, at that point, the
seat of arbitration is found to be somewhere other than Singapore and that change affects
the appropriateness of the emergency arbitrator's order, the tribunal is of course at liberty to
revoke or vary the terms of the order.

6. Schedule 1—paragraph 5

Prior to accepting appointment, a prospective Emergency Arbitrator shall disclose to the

Registrar any circumstances that may give rise to justifiable doubts as to his impartiality or
independence. Any challenge to the appointment of the Emergency Arbitrator must be made
within two days of the communication by the Registrar to the parties of the appointment of
the Emergency Arbitrator and the circumstances disclosed.
a. The emergency arbitrator must be impartial and independent
A prospective emergency arbitrator must disclose to the Registrar any circumstances that 13.39
may give rise to justifiable doubts as to his or her impartiality or independence prior to
accepting the appointment.“
The President will finalize the appointment unless he considers that the candidate is disquali- 13.40
fied as the result of a disclosure. The identity of the emergency arbitrator and any disclosures
made will then be forwarded by the Registrar to the parties for their consideration. The par-
ties then have two days to raise any challenges to the appointment.*> Should a challenge be
made, the non-challenging party will be given some time, usually two days, to respond to
the challenge. The SIAC Court, or more precisely, a committee of the Court, will decide the
challenge pursuant to Rule 16.1.
An emergency arbitrator has a continuing obligation after his or her appointment to disclose 13.41
any circumstances which come to light that may give rise to justifiable doubts as to his or her
impartiality or independence. The SIAC Rules do not prescribe time limits for a challenge
resulting from such a disclosure. It is likely that, in keeping with the spirit of paragraphs 5

44 SIAC Practice Note for Administered Cases (2 January 2014) para 9. For a discussion of an arbitrator's
of disclosure, see Ch 8.
SIAC Rules (2016), the 2010 and 2013 SIAC Rules a party has one
Sch 1, para5. Incontrast, under
‘business’ day ofthe communication of the appointment and any circumstances disclosed by the emergency
arbitrator tofile a challenge to theappointment.
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 Interim and Emergency Relief (SIAC Rule 30)

and 14 of Schedule 1, a party would have only two days from receiving notice of the disclos-
ure to challenge the emergency arbitrator's continued appointment.
13.42 While the need for an emergency arbitrator to be independent and impartial is beyond
question, one might argue that the standard to be applied to determine whether those quali-
ties have been satisfied should be less rigorous than that applied to ordinary arbitrators.
There is only a limited pool of candidates from which the SIAC President can choose an
emergency arbitrator, and only a limited amount of time available for the SIAC President
to do so. Further, any decision of an emergency arbitrator can be immediately modified or
vacated upon the constitution of the tribunal. In practice, however, the SIAC President will
go through the same process as that applicable to ordinary arbitrators when appointing an
emergency arbitrator to ensure that he or she is impartial and independent, albeit pursuant
to a constrained timetable.
13.43 Similarly, the SIAC President will have regard to any qualifications which the parties
have agreed an arbitrator should possess, such as expertise in a particular field or a certain
nationality.

7. Schedule 1—paragraph 6

An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the
dispute, unless otherwise agreed by the parties.

a. An emergency arbitrator is disqualified from acting as an arbitrator in the same dispute

13.44 An emergency arbitrator may not sit as an arbitrator in any future arbitration relating to the
same dispute unless otherwise agreed by the parties.**
13.45 There is a good reason for this rule. The decision of an emergency arbitrator is intended to
be given quickly, to apply for a limited time, and to be subject to review by the tribunal once
constituted. If the emergency arbitrator subsequently were to sit on a tribunal to determine
the same dispute finally, he or she may be inclined to uphold the earlier decision, which oth-
ers, upon fuller submissions, may consider appropriate for revision.

8. Schedule 1—paragraph 7
The Emergency Arbitrator shall, as soon as possible but in any event within two days of his
appointment, establish a schedule for consideration of the application for emergency interim
relief. Such schedule shall provide a reasonable opportunity for the parties to be heard, but
may provide for proceedings by telephone or video conference or on written submissions as
alternatives to a hearing in person. The Emergency Arbitrator shall have the powers vested in
the Tribunal pursuant to these Rules, including the authority to rule on his own jurisdiction,
without prejudice to the Tribunal’s determination.
a. Procedural schedule
13.46 The emergency arbitrator shall, within two days of his or her appointment, establish a proce-
dural schedule.*” The schedule must provide all parties with a reasonable opportunity to be

Sa eenmeemnnmmememeee ee

“6 This rule is consistent with the approach followed under other arbitral rules: ICC Rules (2017), App V,
Art 2(6); Swiss Rules (2012), Art 43(11); and SCC Rules (2017), App II, Art 4(4),
“” SIAC Rules (2016), Sch 1, para 7. In contrast, under the2010 and 2013 SIAC Rules, an emergency arbi-
trator has two ‘business’ days to establish a procedural timetable.

246
 B. Rule 30.2—Application
forEmergency Relief

heard, which may include provision for proceedings via telephone or video conference, by
written submissions, or a brief oral hearing.
b. The powers of an emergency arbitrator
The emergency arbitrator has (almost) all the powers vested in a tribunal under the SIAC 13.47
Rules (see Chapter 12) to enable him or her to determine a request for emergency relief. The
emergency arbitrator has the power, for instance, to determine the applicable law, to consider
whether the arbitration clause is defective to the extent relevant to the application, and more
generally whether he or she has jurisdiction. The emergency arbitrator can modify or vacate
his or her own decision for good cause.
As already noted, however, an emergency arbitrator cannot determine the substance of a dis- 13.48
pute (alchough interim relief may have a substantive effect on the parties, and for that reason
sometimes will itself lead to the parties resolving the dispute through a settlement), and his
or her decisions are not final.*? Further, as already noted, if the parties have not agreed the
seat of arbitration, an emergency arbitrator is constrained to assume that Singapore is the seat
for the purposes of determining the interim relief application.® In a further change made in
2016, a SIAC emergency arbitrator no longer has the express power to ‘resolve any disputes
over the application of this Schedule 1’.5' This presumably reflects the fact that initially it is
the SIAC President who determines whether an emergency arbitrator should be appointed
under Schedule 1, once it is constituted, it is for the arbitral tribunal to determine whether
any orders of the emergency arbitrator should be maintained. In between, it is the role of the
emergency arbitrator simply to apply the terms of Schedule 1. With that said, an emergency
arbitrator may need to interpret the meaning and effect of the provisions of Schedule 1 in
order to discharge his or her function.

9. Schedule 1—paragraph 8
The Emergency Arbitrator shall have the power to order or award any interim relief that he
deems necessary, including preliminary orders that may be made pending any hearing, tele-
phone or video conference or written submissions by the parties. The Emergency Arbitrator
shall give summary reasons for his decision in writing. The Emergency Arbitrator may modify
or vacate the preliminary order, the interim order or Award for good cause.
a. Criteria to be satisfied in order to obtain emergency interim relief
While an arbitration tribunal is empowered under Rule 30.1 to grant an injunction or 13.49
any other interim relief it ‘deems appropriate’, a SIAC emergency arbitrator can order any
interim relief that he or she ‘deems necessary’.
Thus, the case could be made that a SIAC emergency arbitrator is not constrained by the 13.50
principles and jurisprudence to be applied by a competent court when considering a similar
application for interim relief. Instead, a SIAC emergency arbitrator has a general discretion
to grant the interim relief that he or she ‘deems necessary’, and when doing so may be guided
by general principles followed in international arbitration for the granting of interim relief,
as considered in part A of this chapter.

48 SIAC Rules (2016), Sch1, para8.

49 SIAC Rules (2016), Sch 1, paras 8, 10.
50 SIAC Rules (2016), Sch1, para4.
51 SIAC Rules (2010 and 2013), Sch 1, para 5.
247
 Interim and Emergency Relief (SIAC Rule 30)

13.51 In practice, this could mean that an emergency arbitrator will be more or less inclined to
grant a request for interim reliefascompared to a competent court; a factor which could be
considered by a party when determining which of the three fora referenced in Rule 30 ofthe
SIAC Rules it will choose to pursue its request for interim relief.

b. Preliminary orders
13.52 An emergency arbitrator has the power to order any interim relief requested by the applicant
he or she deems necessary. Pursuant to an amendment made in 2016, a SIAC emergency
arbitrator may issue preliminary orders for the purposes of maintaining the status quo pend-
ing further consideration by the emergency arbitrator of the parties’ positions through the
conduct of a hearing or the receipt of written submissions. ;
c. Reasoned decision in summary form
13.53 While the emergency arbitrator is expected to act quickly to render a decision, he or she must
still take the time to record the decision in writing and to provide summary reasons.** Both
are necessary in order to facilitate compliance, and, if necessary, enforcement.

d. Order or award
13.54 Paragraph 8 provides that the emergency arbitrator can render his or her decision in the form
of an order or ‘award’. As already explained, however, an emergency arbitrator's decision can-
not be characterised as an award under Singapore law. Indeed, decisions on interim relief are
expressly excluded from the statutory definition of an award.5? Further, such decisions are by
definition neither final nor capable of determining a substantive issue in dispute.™

10. Schedule 1—paragraph 9

The Emergency Arbitrator shall make his interim order or Award within 14 days from the date
of his appointment unless, in exceptional circumstances, the Registrar extends the time. No
interim order or Award shall be made by the Emergency Arbitrator until it has been approved
by the Registrar as to its form.
a. Time limit for the emergency arbitrator’ decision
13.55 Paragraph 9 was added to Schedule 1 in 2016 to mandate a specific time within which an
emergency arbitrator should reach a decision on an interim relief application, which can
be extended by the Registrar. SIAC emergency arbitrators, however, have on average made
their decisions in significantly less time than 14 days. When seen in that light, the 14-days
stipulated in paragraph 9 should ordinarily be considered the outer limit within which an
emergency arbitrator should render a decision.

11. Schedule 1—paragraph 10

‘The Emergency Arbitrator shall have no power to act after the Tribunal is constituted. The Tribunal
may reconsider, modify or vacate the interim order or Award issued by the Emergency Arbitrator,
including a ruling on his own jurisdiction. The Tribunal is not bound by the reasons given by the

* See Ch 6 for a discussion of the provision of ‘summary reasons’ in the context of expedited proceedings.
Arguably, an emergency arbitrator can be even more brief as, unlike in expedited proceedings, tisdecision of
an emergency arbitrator is not meant to be final and can be made in the form of an order rather than an award.
53 TAA, ss 2(1) and 12(1)(i);
AA, ss 2(1) and 28.
54 See paras [13.12~13.15].

248
 B. Rule 30.2—Application for Emergency Relief

Emergency Arbitrator. Any interim order or Award issued by the Emergency Arbitrator shall, in
any event, cease to be binding if the Tribunal is not constituted within 90 days of such order or
Award or when the Tribunal makes a final Award or if the claim is withdrawn.

4. The emergency arbitrator's decision is subject to review and modification by the tribunal
As already mentioned, a decision rendered by an emergency arbitrator is intended to apply 13.56
only for a limited time.*> The emergency arbitrator’s decision:
(a) will lapse if the tribunal is not constituted within 90 days of the decision;
(b) can be modified or vacated by the tribunal once it is constituted; or
(c) alternatively, it will cease to have any effect upon the rendering of a final award by the
tribunal or if the ciaim is withdrawn.
The powers of the emergency arbitrator cease once the tribunal is constituted. 13.57
12. Schedule 1—paragraph 11

Any interim order or Award by the Emergency Arbitrator may be conditioned on provision by
the party seeking such relief of appropriate security.
a. Posting ofsecurity
An emergency arbitrator may require the party requesting interim relief to post security to 13.58
protect the other party against any harm suffered should the interim measure ultimately be
found to have been unjustified.5®

13. Schedule 1—paragraph 12

‘The parties agree that an order or Award by an Emergency Arbitrator pursuant to this Schedule
1 shall be binding on the parties from the date it is made, and undertake to carry out the
interim order or Award immediately without delay. The parties also irrevocably waive their
rights to any form of appeal, review or recourse to any State court or other judicial authority
with respect to such Award insofar as such waiver may be validly made.
a. The decision ofthe emergency arbitrator is binding and enforceable and parties waive their
rights to appeal, review, or recourse
By virtue of their having agreed to the resolution of any disputes by arbitration under the 13.59
SIAC Rules, the parties are contractually bound to comply with any interim measures ordered
by the emergency arbitrator. In addition, pursuant to an amendment made in 2016, the par-
ties expressly agree to waive their rights to appeal, review, or recourse to any State court or
judicial authority to the extent such waiver may be validly made under the applicable law.
As already explained, however, that is not to say that the decision is final.” In particular, the
tribunal once constituted can reconsider, modify, or vacate the order. The Singapore High
Court, for its part, however, is unlikely to entertain a challenge to an emergency arbitrator's
order pending the constitution of the tribunal.**

the
in 2016 to make clear that the tribunal’s power to reconsider, modify, or vacate
55 Para 10 was amended
emergency arbitrator's decision extends to theemergency arbitrator's ruling on jurisdiction.
56 See part A ofthis chapter for a discussion on the security which may need to beposted in support of an
6), SchSch 1,
57 SIAC Rules (2016), 100.
wad“ThisinSveseseasd toasane. Pas only:owed canbeehuilengedtucler theUNGITRAL Model Law,
Art 34. Second, as explained in Ch 2, the Singapore courts are deferential to arbitral tribunals generally, but

249
 Interim and Emergency Relief (SIAC Rule 30)
ea PE eTc

14. Schedule 1—paragraph 13

The costs associated with any application pursuant to this Schedule 1 may initially be appor-
tioned by the Emergency Arbitrator, subject to the power of the Tribunal to determine finally
the apportionment ofsuch costs.

a. Costs ofan application for emergency relief

13.60 The costs of an emergency arbitrator include SIAC’s administration fee of $5,000, the
emergency arbitrator's fixed fee of $$25,000 (unless the Registrar determines otherwise) and
the emergency arbitrator's expenses up to S$5,000 (excluding GST).
13.61 The emergency arbitrator has the power to apportion the costs of an application for emer-
gency relief between the parties. The emergency arbitrator's ruling on costs is subject to
review and modification by the tribunal once constituted.

15. Schedule 1—paragraph 14

These Rules shall apply as appropriate to any proceeding pursuant to this Schedule 1, taking
into account the urgency of such a proceeding. The Emergency Arbitrator may decide in what
manner these Rules shall apply as appropriate, and his decision as to such matters is final and
not subject to appeal, review or recourse. The Registrar may abbreviate any time limits under
these Rules in applications made pursuant to proceedings commenced under Rule 30.2 and
Schedule 1.
a. The SIAC Rules apply to the emergency proceedings
13.62 The emergency arbitrator is given the flexibility to determine the precise application of the
SIAC Rules in order to allow him or her to render a decision quickly. The emergency arbitra-
tor’s decision as to such matters is final, at least while the decision remains in force.*

13.63 The Registrar may abbreviate any time-limits under the SIAC Rules in order to ensure that
the emergency arbitrator process is conducted efficiently.

C. Rule 30.3—Interim Relief from a Court

1. Rule 30.3

A request for interim relief made by a party to a judicial authority prior to the constitution of
the Tribunal, or in exceptional circumstances thereafter, is not incompatible with these Rules.
a. Interim relieffrom a court is not incompatible with the SIAC Rules
13.64 Courts are sometimes better placed than tribunals to grant certain forms of interim relief.
Seeking interim relief from a court might be appropriate, for instance, because the interim
relief is required on an ex parte basis, is against or involves third parties, requires the enforce-
ment powers of the court in order to be effective such as where the dissipation of assets or

particularly in relation to case-management decisions, which, in the absence of fraud, corruption, or a breach
of public policy, is likely to include the granting of interim relief in order to preserve the status quo in the rights
and obligations of the parties pending the outcome of an arbitration. Third, the Singapore Court will
be cognizant of the fact that the tribunal will have the opportunity, and will be better placed, to consider the
appropriateness of the emergency arbitrator's orders once it is constituted.
59 SIAC Rules (2016), Sch 1, para 12.

250
 C. Rule 30.3—Interim Relief from a Court

the destruction of evidence is feared, or relates to contracts over which the tribunal may
not
have jurisdiction.

Rule 30.3 specifies two situations in which a party may apply to acourt for interim relief. The 13.65
hirst is prior to the constitution of the tribunal; the second is in ‘exceptional circumstances’
thereafter. Both situations are considered in turn.

b. Applications to a court for interim reliefprior to the constitution ofthe tribunal

The SIAC Secretariat aims to have a tribunal constituted in a matter of weeks after the filing 13.66
of aNotice of Arbitration. In practice, however, it can take several months. A party may be
justifiably concerned that during such time the assets against which an award may need to
be enforced may be sold or moved out of the jurisdiction or key evidence destroyed. In such
circumstances, a party can either apply for interim relief from an emergency arbitrator (see
part B of this chapter) or a court of competent jurisdiction.
The nature of the interim relief that a party can obtain from a court and the criteria that the 13.67
court will apply in determining a request for interim relief will be governed by the law of the
place at which the court sits.
For requests made in Singapore, the power of the court to grant interim relief depends on 13.68
whether the matter is urgent (rather than whether the tribunal has been constituted, which is
the key consideration under Rule 30.3 of the SLAC Rules). If ‘the case is one of urgency’, the
Singapore High Court may grant certain orders the Court ‘thinks necessary for the purpose
of preserving evidence or assets’ .*"
If ‘the case is not one of urgency’, the Singapore High Court will only grant interim relief 13.69
prior to the constitution of the tribunal if the application for interim relief is made with the
agreement in writing of the other parties.®
c. Applications to a court after the tribunal has been constituted
Pursuant to the terms of Rule 30.3, a party may seek interim relief from a court after the tri- 13.70
bunal has been constituted only in ‘exceptional circumstances’. The Drafting Committee of
the 2010 SIAC Rules rejected a proposal that such applications could be brought in merely
‘appropriate’ circumstances, as allowed under the ICC Rules.®

60 For a discussion of the types of interim relief available from national courts, see Blackaby and Partasides,
Redfern and Hunter (n 9) paras [7.22-7.61].
1 JAA, s 12A(4) (emphasis added). Maldives Airports Co Ltd and anor v GMR Malé International Airport Pte
Ltd (2013) 2 SLR 449 (Singapore Court of Appeal) paras 43-44:
In our view, ‘necessary’ ordinarily imports the notion that without the order in question, the evi-
dence or asset which is sought to be preserved would be lost. If there are other reasonably available
alternatives for securing the evidence or asset, then it cannot be said that the order is necessary for
the preservation of that evidence or asset.
The Singapore Court of also noted: ‘we consider that the type of contractual rights which would
come within the meaning fear under s 12A(4) are those which lend themselves to being preserved or, put
another way, those which, iflost, would not adequately be remediable by an award of damages’. The Court left
open the question of whether the Singapore courts had jurisdiction under any other provision of law (other
than IAA, s 12A(4)) to grant an injunction in support of an arbitration prior to the constitution of the relevant
tribunal.

fe) 1998, ’ theICC Rules

pene 1998), Art23(2);51ICC Rules (2017),; Art28(2).'e Prior to
63 CC Rules requit
Oe es Guide totheICC Rules ofArbitration (2nd edn, Kluwer
Law International 2005) 299.

251
 Interim and Emergency Relief (SIAC Rule 30)
eee nnn TPN No TIN OI
13.71 In contrast, as already mentioned, the key issue to be determined by a Singapore court when
considering a request for interim relief from a party subject to an arbitration agreement is
whether the matter is urgent or not. If the matter is urgent, the applicant will need to demon-
strate that the requested relief is ‘necessary’ for the purposes of preserving evidence or assets.™
13.72 Further, even if urgency is established, the Singapore High Court will grant interim relief
after the tribunal is constituted only if or to the extent that the tribunal ‘has no power or
is unable for the time being to act effectively’. This includes instances ‘where the court's
coercive enforcement powers are required or where the arbitral tribunal has no jurisdiction
to grant the relief sought’,® such as relief relating to third parties or related proceedings.
Alternatively, a party may consider it necessary to request interim relief from a court with-
out notice to the other party or parties. As explained in part A of this chapter, it is doubtful
whether a SIAC tribunal can entertain such a request, whereas it is clear that the Singapore
High Court can grant relief ex parte if the matter is urgent.°”
13.73 If the request is not urgent, the Singapore High Court will only grant interim relief after the
tribunal has been constituted if the application is made with the permission of the tribunal
or the agreement in writing of the other parties.®®
13.74 In all cases, a party seeking the aid of a court after a SIAC tribunal has been constituted will
need to justify why it is appropriate to depart from the presumption that requests for interim
relief should be referred to the tribunal.

d. Criteria for obtaining interim relieffrom Singapore High Court

13.75 The Singapore High Court will exercise its discretion when considering a request for interim
relief in accordance with the principles laid down by Lord Diplock in the American Cyanamid
case. Specifically, the Singapore High Court will consider (a) whether there is a serious issue
to be tried; (b) whether damages would be an adequate remedy if interim relief were not
granted; and (c) where the balance of convenience lies.

13.76 In relation to the last of these considerations, the Singapore Court of Appeal summed up the
competing interests of the applicant and the respondent which a Singapore court must consider

64 TAA, ss 12A(5)—(6).
65 TAA, s 12A(6).
66 NCC International AB v Alliance Concrete Singapore Pte Ltd [2008] 2 SLR(R) 565 (Singapore Court of
Appeal) para 53.
67 JAA, s 12A(2) and (4). RSC Ord 29 r 1(2), where the case is one of urgency, an application for an interim
injunction may be made ex parte. In contrast, IAA, s 12A(5) provides that:
If the case is not one of urgency, the High Court or a Judge thereof shall make an order under [IAA,
s12A(2)] only on the application of a party to the arbitral proceedings (upon notice to the other parties
and to the arbitral tribunal) made with the permission of the arbitral tribunal or the agreement in
writing of the other parties. (Emphasis added.)
An applicant for ex parte interim relief has a duty to make full and frank disclosure to the Singapore court. The
duty to disclose applies not only to material facts known to the applicant but also such additional facts which it
would have known had it made proper inquiries—Solvadis Commodity Chemicals GmbH vAffert Resources Pte
Ltd (2013] SGHC 217, para 18. :
68 TAA, s 12A(5).
® ‘The principles set out in American Cyanamid v Ethicon Ltd 1975] 1 AC 396 (English House of Lords)
407-8 were applied by Singapore courts in Da Vinci Collection Pte Ltd v Richemont International SA (2006)
3 SLR(R) 560 (Singapore Court of Appeal) para 10; Gatekeeper, Inc v Wang Wensheng (trading as Hawkeye

252
 C. Rule 30.3—Interim Relief from a Court

when determining a request for interim relief in the case of Maldives Airports Co Ltd and anor v
GMR Malé International Airport Pte Lid as tollows:’°

The essential principle is that because the court is asked to conduct this balancing exercise [of con-
venience) at an early stage and based only on affidavit evidence, it should take whichever course
appears to carry the lower risk of injustice if that course should ultimately turn out to have been
the ‘wrong’ course, in the sense of an injunction having been granted when it should have been
refused or an injunction having been refused when it should have been granted.

More specific criteria may need to be considered in certain circumstances. For instance, the test for
the obtaining of an injunction to prevent the calling of a performance bond is whether the calling
of the bond would be abusive on the grounds of fraud or unconscionability.”'

e. Forms ofinterim relief

The power of the Singapore High Court to grant interim relief extends to (and goes beyond) 13.77
the matters that may be addressed by an arbitral tribunal seated in Singapore (see paras [13.04-
13.06]) with the exceptions of security for costs, the production of documents, and interroga-
tories.’? These last three matters cannot be the subject of a Singapore court order presumably
because they are unlikely to be urgent and thus ought to be determined by the tribunal.
The Singapore Court has granted several injunctions freezing the assets of a party to an arbi- 13.78
tration (which is sometimes referred to asa Mareva injunction’). In order to obtain a Mareva
injunction, an applicant must show that it has a ‘good arguable case’ on the merits and that
there is a ‘real risk’ of dissipation of assets.’* The risk of dissipation has to be demonstrated
by ‘solid evidence’, which might consist of evidence that the defendant had previously acted
in a way which showed that its probity was not to be relied upon. In Solvadis Commodity
Chemicals GmbH v Affert Resources Pte Ltd, the Singapore High Court was satisfied that ‘the
Defendant's lack of commercial morality on the facts lent credence to the Plaintiffs conten-
tion that there was a real risk of dissipation of assets’.’> In that case, the Court considered that
a lack of ‘commercial morality’ was established by the defendant's failure to open a letter of
credit or arrange other means of ensuring payment to the plaintiff for a shipment of goods.76
More recently, in AYK vAYM [2015] SGHC 329, PrakashJ (as she then was) issued a world- 13.79
wide freezing order in support of efforts to enforce a SIAC arbitration award. Prakash J was

Technologies) (2011] SGHC 239 (Singapore High Court) para 4; and Chuan Hong Petrol Station Pte Ltd v Shell
Singapore (Pte) Ltd(1992] 2 SLR 729 (Singapore Court of Appeal) para 81.
70 Maldives Airports Co Ltd and anor v GMR Male International Airport PteLtd(2013] 2 SLR 449 (Singapore
Court of Appeal) para 53. Q
™. GHL Pte Ltd v Unitrack Building Construction Pte Ltd (1999] 4 SLR 604 (Singapore Court of Appeal);
Pte Ltd(2000] SGHC 114.
Eltraco International Pte Ltd v CGH Development
72 IAA,s 12A(2). Following amendments made to the IAA effective 1 January 2010, the power to order security
for costs in Singapore arbitrations subject to the [AA now belongs exclusively to arbitral tribunals. The power to
order security for costs in domestic arbitrations, however, is held concurrently by the Singapore courts and arbitral
tribunals: AA, ss28 and 31. AHenderson, ‘Security for Costs in Arbitration in Singapore’ (2011) 7(1) AIAJ 54.
73 Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213.
74 Guan Chong Cocoa Manufacturer Sdn Bhd v Pratiwi ShippingSA [2003] 1 SLR(R) 157 at [17]; Solvadis
(n 67) at [16].
75 Solvadis (n 67) para 23. |
76 Solvadis(n67) para23.Nonetheless, the amorphous concept of ‘commercial morality’ does not appearto
be thetest forgranting a Mareva injunction. Rather, theoverall testiswhether there isa real risk ofdissipation
of assets.

253
 Interim and Emergency Relief (SIAC Rule 30)
a eee ere DS i A ETE ITN
convinced that there was ‘clear and systematic disposal of assets’ by the defendant since the
arbitration had commenced. The defendant's conduct before and during the arbitration was
also considered relevant, with Her Honour noting that the defendant had not satisfied his
contractual obligations, thus compelling the arbitration to be started, and then had sought
to set aside the award on ‘flimsy’ grounds rather than complying with it. Prakash Jconcluded
that the injunction should be issued due to a ‘real risk of the defendant dissipating his assets
or moving them around so as to frustrate the plaintiffs in their attempts to satisfy their
[award]’.””

13.80 In another recent case, the Singapore High Court ordered the sale of cargo being held in
international waters outside Singapore in support of an arbitration seated in Singapore
whose tribunal had not yet been constituted.”8 The Court held that the sale was necessary to
protect or preserve the cargo as its value was at risk of deteriorating. The living conditions of
the crew and the safety of the vessel were also found to be at risk.”
13.81 The Singapore High Court can grant interim relief in support of arbitrations seated outside
Singapore, but will consider whether the fact an arbitration is being conducted outside
Singapore makes the granting of interim relief inappropriate.®
13.82 Any interim relief granted by the High Court will cease to apply if the tribunal makes an
order relating to the whole or part of the court order.®"
f Posting ofsecurity and undertakings as to damages
13.83 An applicant for the issuance of an injunction from the Singapore High Court may need
to provide an undertaking to the Court that it will compensate the defendant for any loss
caused to the defendant by the injunction. If such a loss is found to have been caused by the
injunction, the Court retains a discretion as to whether to enforce the undertaking as to dam-
ages.®2 As demonstrated in the case of Astro Nusantara International BV v PT Ayunda Prima
Mitra, the mere fact that the underlying claim which was used to support the application for
a freezing injunction is subsequently found to be without merit does not automatically mean
that the defendant is entitled to damages. As discussed in Chapter 2, in that case five SIAC
awards were issued in favour of Astro and then recognised by the Singapore High Court
as judgments of the Court.®? Astro then obtained worldwide Mareva injunctions from the
Singapore High Court to aid the execution of the Singapore court judgments. Subsequently,
the Singapore Court of Appeal held that the five SLAC awards were not enforceable against
three of the respondents to the arbitration, thus wiping out most of the value of the awards
(at least for the purposes of enforcement in Singapore). The question then arose as to whether
Astro should be liable in damages for any harm caused by the imposition of the freezing
injunctions. The High Court decided not to enforce Astro’s damages undertaking given that

” AYK and another v AYM [2015] SGHC 329, paras 32-33.

78 Five Ocean Corp v Cingler Ship Pte Ltd (2016) 1 SLR 1159.
79 Thus, the power of the High Court under s 12(A)(4) of the IAA to issue orders ‘for the purpose of preserv-
ing evidence or assets’ enables the Court to order the sale of the asset in question if necessary to preserve its value.
In other words, it may be more important to preserve the value of an asset which is the subject of an arbitration
rather than the asset itself.
80 JAA, s 12A (3).
81 TAA, s 12A(7).
. Hey —" Trust Inc v Soosan Trading Co Ltd [2000] 2 SLR (R) 407 at [54].
8 19,

254
 C. Rule 30.3—Interim Relieffrom a Court
ere
at the time the application for freezing injunctions had been made the five SIAC awards had
not been set aside in any way and had not been paid by the respondents for over two years.®
4
& Sovereign immunity
Finally, parties seeking interim relief against a State before a Singapore court are subject to 13.84
the restrictions prescribed by the State Immunity Act (Singapore). In particular, ‘relief shall
not be given against a State by way of injunction or order for specific performance or for the
recovery of land or other property’ .® Interim relief, however, can be obtained against a State
party if the State has waived its immunity in relation to a party obtaining such relief.8®

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 14
AWARDS
(SIAC RULES 32 TO 33)

A. Rule 32—The Award 14.02 12. Rule 32.10 14.39

1. Decisions which qualify as an award 14.02 13. Rule 32.11 14.42
2. Types of awards 14.05 14. Rule 32.12 14.50
3. Rule 32.1 14.09 B. Rule 33—Corrections and
4, Rule 32.2 14.09 Interpretations of Awards and
of isetiree noe Additional Awards 14.55
6. Rule 32.4 14.22 1. Rule 33.1 14.58
7. Rule 32.5 14.26 2 Rule 33.2 14.63
8. Rule 32.6 14.28 3. Rule 33.3 14.64
9, Rule 32.7 14.33 4. Rule 33.4 14.70
10. Rule 32.8 14.34 5, Rule 33.5 14.75

11. Rule 32.9 14.36 6. Rule 33.6 14.76

14.01 Rules 32 and 33 provide the framework for the making of awards in SIAC arbitrations. Rule
32, which is considered in part A of this chapter, is split into twelve sub-rules, each dealing
with a distinct issue relating to the issuance, content, scrutiny, effect, and the publication of
awards. Part B addresses Rule 33, which allows a tribunal to correct or interpret an award that
has been issued to the parties and issue an additional award.

A. Rule 32—The Award

1. Decisions which qualify as an award
14.02 Singapore law defines an award as: ‘a decision of the arbitral tribunal on the substance ofthe
dispute and includes any interim, interlocutory or partial award but excludes any orders or
directions made under section 12’.'
14.03 The Singapore Court of Appeal held in PT Asuransi Jasa Indonesia (Perseo) v Dexia Bank SA
that a ruling on jurisdiction alone could not be considered an award as it was not a decision
on the substance of the dispute.?

' IAA, s 2(1); AA, s 2(1) (emphasis added). >

? PT Asuransi Jasa Indonesia (Perseo) v Dexia Bank SA [2007] 1 SLR(R) 597 (Singapore Court of Appeal)
para 71. The Court of Appeal held that, as it was not an award, a negative decision on jurisdiction could not be
set aside even though the tribunal had characterized it as an award. But that does not mean a preliminary ruling
on jurisdiction cannot be challenged, a point confirmed by the Court of Appeal in /nternational Research Corp
ple v Lufthansa Systems Asia PacificPte Ltd[2014] 1 SLR 130 (Singapore Court ofAppeal) para 69.

256
 A. Rule 32—The Award

The 2007 and 2010 SIAC Rules similarly define an award as a decision ‘on the substance of 14.04
the dispute’.* That expression, however, has been omitted from the definition of an award
in the 2013 and 2016 SIAC Rules in favour of defining an award as including a decision
of an emergency arbitrator.* Nonetheless, as a matter of Singapore law, an award is a deci-
sion which finally determines a substantive issue in dispute (which an emergency arbitrator
should not do) and cannot be a decision which imposes an interim injunction or any other
interim measure.°

2. Types of awards
A final award is one in which the tribunal determines all the outstanding issues in dispute. 14.05
In contrast, a partial award is one in which only some issues are decided. It is sometimes
referred to as an ‘interim’ award. The term ‘interim award’, however, suggests that the award
is only applicable for an interim period of time (whereas an award must be final in relation
to the issues it determines)® or limited to issues of interim relief, which, at least as a matter
of Singapore law, cannot be determined in the form of an award.” Thus, the term ‘partial
award’ is preferred.
To qualify as an award under Singapore law, a decision cannot be one made under section 12 14.06
of the IAA (or section 28 of the AA),® which includes orders or directions made relating to:?

(a) security for costs or security for the amount in dispute;

(b) discovery of documents and interrogatories;
(c) the preservation of evidence;
(d) the preservation, interim custody, or sale of any property which is or forms part of the
subject matter of the dispute; or
(e) an interim injunction or any other interim measure.
Decisions on procedural issues such as these cannot be enforced in Singapore as an award. 14.07
Similarly, as explained in Chapter 13 (paras 13.23 to 13.24), a decision of an emergency
arbitrator cannot be enforced in Singapore as an award. That is not to say such decisions
are unenforceable. Section 12(6) of the IAA (and section 28(4) of the AA) provides that all
orders or directions made by a tribunal shall, by leave of the Singapore High Court or a judge
thereof, be enforceable in the same manner as if they were orders made by a court.
Besides partial and final awards, a tribunal may issue a consent award, which records an 14.08
agreement of the parties to settle a dispute that has been referred to arbitration (see Rule
32.10). A tribunal can also render an award on costs under Rule 27.1(g) (see Chapter 12).

3 SIAC Rules (2010), Rule 1.3; SLAC Rules (2007), Rule 1.2.
4 SIAC Rules (2013), Rule 1.5 provides that an ‘Award includes a partial or final award and an award of an
Emergency Arbitrator’. SIAC Rules (2016), Rule 1.3 provides that an ‘ “Award” includes a partial, interim or
final award and an award of an Emergency Arbitrator.’
5 See para [14.06].
6 SIAC Rules (2013), Rule 32.11 provides that ‘an award shall be final and binding on the parties from the
date it is made’. New York Convention, Art V(e) and 1985 UNCITRAL Model Law, Art 36(1)(v) allow a court
to refuse recognition of an award that ‘has not yet become binding’. IAA, s 19B(1) and AA, s 44(1) provide that
an award is ‘final and binding’. ;
7 For a discussion on the proper characterization of a decision on interim relief, see Ch 13, paras
(13.12-13.15].
8 IAA, s 2(1); AA, s 2(1).
9 IAA, s 12(1); AA, s 28.
257
 Awards (SIAC Rules 32 to 33)
ne
A ‘summary award’ may be rendered in cases in which the parties have expressly agreed
to resolve their dispute in accordance with the SIAC Domestic Arbitration Rules (see
Chapter 18).'°

3. Rule 32.1

The Tribunal shall, as promptly as possible, after consulting with the parties and upon being
satisfied that the parties have no further relevant and material evidence to produce or submis-
sion to make with respect to the matters to be decided in the Award, declare the proceedings
closed. The Tribunal’s declaration that the proceedings are closed shall be communicated to
the parties and to the Registrar.

4, Rule 32.2

The Tribunal may, on its own motion or upon application of a party but before any Award
is made, re-open the proceedings. The Tribunal’s decision that the proceedings are to be re-
opened shall be communicated to the parties and to the Registrar. The Tribunal shall close any
re-opened proceedings in accordance with Rule 32.1.
a. Time limits and closure ofthe proceedings
14.09 The tribunal must declare the proceedings closed before rendering an award. In contrast
to earlier versions of the rules, Rule 32.1 of the 2016 SIAC Rules makes clear that this
requirement applies to all awards issued during the course of an arbitration, not just the
final one."
14.10 Before declaring the proceedings closed, the tribunal shall consult with the parties to ensure
that all ‘relevant and material’ evidence and submissions in relation to the pending award
have been put to the tribunal. Further submissions after the closure of the proceedings can
only be tendered with tribunal approval pursuant to Rule 32.2."
14.11 The closure of the proceedings prevents an endless stream of submissions or new documents
from the parties. It also signals to the parties (and the Secretariat) that they can expect to
receive the award in relatively short order. In practice, tribunals will usually only declare
the proceedings closed when the drafting of the award is well advanced or is expected to be
completed within 45 days, as required by Rule 32.3.
14.12 Other than for expedited arbitrations conducted under Rule 5, the SIAC Rules do not stipu-
late a maximum time within which an award must be rendered. The Tribunal, however, is
required to issue the award as ‘promptly as possible’ under Rule 32.1 and ‘expeditiously’
under Rules 19.1 and 41.2. In contrast, for arbitrations seated in India, recent amendments
made to the Arbitration and Conciliation Act, 1996 require that an award be rendered

'0 SIAC Rules (2013), Sch 2, Art 3, The 2016 SIAC Rules do not include a separate schedule for cases gov-
erned by the SIAC Domestic Arbitration Rules.
"" This brings the SIAC Rules into line with the ICC Rules (2017), Art 27, which provides an ICC tribunal
is required to ‘declare the proceedings closed with respect to the matters to be decided in the award’,
"2 The SIAC Rules do not require any particular circumstances to exist before the proceedings can be re-
opened under Rule 32.2. In contrast, the ICSID Rules of Procedure for Arbitration Proceedings, Rule 38(2)
allows the tribunal to reopen the proceedings ‘exceptionally’ on the ground that ‘new evidence is forthcoming
of such a nature as to constitute a decisive factor, or that there is a vital need for clarification on certain specific
points’.

258
 A. Rule 32—The Award

within six months from the date the tribunal was formally appointed, which can be extended
by a further six months by an agreement ofthe parties."3
SIAC did contemplate in early 2016 introducing a requirement that an award be rendered 14.13
within 75 days ofthe last hearing concerning matters to be decided in the award, but ultim-
ately decided against it after consultations with the arbitration community.

5. Rule 32.3

Before making any Award, the Tribunal shall submit such Award in draft form to the Registrar.
Unless the Registrar extends the period of time or unless otherwise agreed by the parties, the
Tribunal shall submit the draft award to the Registrar not later than 45 days from the date on
which the Tribunal declares the proceedings closed. The Registrar may, as soon as practicable,
suggest modifications as to the form of the award and, without affecting the Tribunal’s liberty
to decide the dispute, draw the Tribunal’s attention to points of substance. No Award shall be
made by the Tribunal until it has been approved by the Registrar as to its form.
a. Scrutiny ofawards
As explained in Chapter 3, it was not until the release of the 2007 SIAC Rules that the SIAC 14.14
Secretariat began to play a hands-on role in the conduct of SIAC arbitrations. Those and
subsequent SIAC rules have required the SIAC Registrar (with the assistance of counsel and
associate counsel within the SIAC Secretariat) to scrutinize arbitration awards in draft form
before they are issued to the parties. The incorporation of this feature into the SIAC Rules
was inspired by the scrutiny of awards under the ICC Rules." It represents a departure from
the LCIA Rules,'> which heavily influenced the drafting of the 1991 SIAC Rules."
The scrutiny of a tribunal’s draft award by lawyers within the SIAC Secretariat helps to ensure 14.15
that SIAC awards are of a high standard and comply with the SIAC Rules, which can assist
with enforcement. It can also save time and costs. The SIAC Secretariat may identify errors
or ambiguities in the draft award that may otherwise have led to applications for corrections
and/or interpretations of the award. It may also point out special features of the applic-
able law or the likely place of enforcement. For instance, an award can only be enforced in
Indonesia if the award has been registered at the relevant District Court by the tribunal itself
or someone authorized by a power of attorney to do so on the tribunal’s behalf."” Finally, the
scrutiny of awards also provides the Secretariat with an opportunity to assess the perform-
ance of SIAC arbitrators.
The tribunal must submit a draft award to the Registrar for scrutiny within 45 days of its 14.16
declaring the proceedings closed pursuant to Rule 32.1. The Registrar, or the parties by
agreement, may extend this time limit. The tribunal does not have the power to do so.'*

13 The Arbitration and Conciliation (Amendment) Act, 2015, s 15 (India). There is speculation that this
requirement will have to be extended by the Indian parliament or courts.
% ICC Rules (2017), Art 34.
15 An informal review of LCIA awards is conducted in practice when requested by tribunals. M Scherer, L
Richman, et al Arbitrating under the 2014 LCIA Rules:AUser’ Guide (Kluwer Law International 2015), Ch
cee) cg
The scrutiny of awards has never been the practice at other regional arbitral institutions such as HKIAC
and ACICA.
17 Law No 30 of 1999, Arbitration and Alternative Dispute Resolution (Indonesia), Arts 59 and 67.
'8 See the discussion of SIAC Rule 27(b) inCh 12.
259
 Awards (SIAC Rules 32 to 33)

14.17 The SIAC Registrar is required to scrutinize the draft award ‘as soon as practicable’. The SLAC
Registrar aims to return comments on a draft award to the tribunal within 14 days of receipt of
an ordinary award from a tribunal or 24 hours of a draft award being submitted by an emergency
arbitrator, although in practice it can take longer.
14.18 The Registrar can approve the award, propose changes to its form, flag errors or ambiguities, or
draw the tribunal’s attention to points of substance for it to consider. This process may need to
be repeated until the Registrar is satisfied that the award should be issued to the parties.
14.19 The SIAC Rules are silent on the form requirements for an award. SIAC has an internal
checklist that the Registrar (along with the counsel or associate counsel assigned to thecase)
considers when scrutinizing a draft award. The Registrar, among other things, will check the
accuracy of the parties’ names; the description of the party representatives and arbitrators;
the SIAC case number reference; the identification of the applicable SIAC Rules and choice
of law; the arbitration agreement (which must be set out in full); the tribunal’s summary of
the procedural history of the arbitration; the tribunal’s summary of the parties’ submissions;
and the details contained in the dispositive section. For arbitrations seated in Singapore, the
IAA and AA require that an award be in writing, be signed by the arbitrator or arbitrators,"®
state the place and date of the award, and contain the reasons upon which the award is based
(unless the parties have agreed otherwise or it is a consent award).?°
14.20 The substantive issues arising from a draft award on which the Registrar may comment
include identifying any issues or claims the tribunal may have failed to address, as well as
any confusing passages, insufficient or inconsistent reasoning, or inconsistencies with the
applicable law. In practice, the SLAC counsel or associate counsel assigned to the case will
consider and compare all correspondence and submissions filed by the parties as against the
terms of the draft award in order to provide such constructive criticism.
14.21 The Registrar will inform the tribunal of the arbitration costs to be included in the award,?"
unless costs are to be addressed by the tribunal in a subsequent award. The Registrar will also
draw attention to any failure to apportion the parties’ legal and other costs, and the ‘SIAC
costs of the arbitration’, between the parties pursuant to Rules 35.1 and 37 (see Chapter 15).

6. Rule 32.4
The Award shall be in writing and shall state the reasons upon which it is based unless the par-
ties have agreed that no reasons are to be given.
a. Reasoned awards
14.22 Earlier editions of the SIAC Rules only required that a tribunal state in writing the reasons
upon which the award is based in respect of expedited proceedings”? or an award issued by
an Emergency Arbitrator.?? That anomaly has now been corrected with the inclusion of Rule
32.4 in the 2016 SIAC Rules.”4
i

'9 For tribunals with more than one member, it will suffice if the majority of the arbitrators sign the award
and reasons are given for any omitted signature.
20 TAA, s 3(1); 1985 UNCITRAL Model Law, Art 31(2); AA, s 38(2).
21 SIAC Rules (2016), Rule 35.1.
22 SIAC Rules (2013), Rule 5.2(e).
23 SIAC Rules (2013), Sch 1, para 6.
24 ‘This also brings the SIAC Rules into line with the rules of other leading arbitral institutions: ICC Rules
(2017), Art 32(2); HKIAC Rules (2013), Art 34.4; LCIA Rules (2014), Art 26.2.

260
 A. Rule 32—The Award

As a matter of Singapore law, an award must be in writing, be signed by the arbitrator or 14.23
arbitrators,” state the place and date of the award, and contain the reasons upon which the
award is based (unless the parties have agreed otherwise or it is a consent award).2 Indeed, as
noted in Chapter 2, a failure to state reasons in an award can amount to a breach of the rules
of national justice and give rise to a right to have the offending award set aside.?”

Guidance as to the level of reasoning required for a valid award was provided by the Singapore 14.24
High Court in TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd.?8 After
considering the standards applicable to the decisions of judges of the Singapore courts,2®
Chan Seng OnnJ concluded that the following level of reasoning is required in an arbitra-
tion award:
Even if some of an arbitral tribunal’s conclusions are bereft of reasons, that is not necessarily
fatal [to the award]. There are a variety of reasons why an arbitral tribunal may elect not to
say something. In my view, the crux is whether the contents of the arbitral award taken as a
whole inform the parties of the bases on which the arbitral tribunal reached its decision on the
material or essential issues.
His Honour relied on the view of Justice Judith Prakash in SEF Construction Pte Ltd v Skoy
Connected Pte Ltd, who noted that:3'
Natural justice requires that the parties should be heard; it does not require that they be
given responses on all submissions made.??
This echoes a similar line taken by the English High Court as to the requirements of a
reasoned award:?3
All that is necessary is that the arbitrators should set out what, on their view of the evidence,
did or did not happen and should explain succinctly why, in the light of what happened, they
have reached their decision and what the decision is. This is all that is meant by a ‘reasoned
award’.
Thus, an arbitral tribunal need not address in its award every issue, legal argument, or point 14.25
raised by the parties.*# Rather, ‘all that is required of the arbitral tribunal is to ensure that
the essential issues are dealt with’.3> Decisions or findings which do not bear directly on the

25 For tribunals with more than one member, it will suffice if the majority of the arbitrators sign the award
and reasons are given for any omitted signature.
26 JAA, s 3(1); 1985 UNCITRAL Model Law, Art 31(2); AA, s 38(2).
27 TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd(2015] SGHC 186 (Singapore High
Court) para 99.
28 TMM Division Maritima SA de CV v Pacific Richfield Marine Pte Ltd(n 27) para 104.
28 TMM Division Maritima (n 27) para 103, relying on the Singapore Court of Appeal decision in Thong
Ah Fat v PP [2012] 1 SLR 676.
30 TMM Division Maritima (n 27) para 104.
31 SEF Construction Pte Ltd v Skoy Connected Pte Ltd{2010] 1 SLR 733, para 60; relied on in TMM Division
Maritima (n 27) para 76.
32 Similarly, Quentin LohJ of the Singapore High Court recently dismissed an argument that a tribu-
nal had failed to provide sufficient reasons as it had dealt with the ‘crux’ of the pleaded case in its reasoned
award. Mount Eastern Holding Resources Co., Ltd v H&C S Holdings Pte Ltd and anor matter [2016] SGHC
1 (Singapore High Court) para 23; echoing a similar approach to the one taken in TMM Division Maritima
104.
" Soumer Handdapellchaf mbHv Westzucker GmbH (No 2) [1981] 2 Lloyd’s Rep 130, Donaldson LJ,
132-33.
on TAA. Diettonshlacli (n 27) paras 72-77; SEF Construction Pte Ltd {2010}
Pte Ltd vSkoy Connected
1 SLR 733 (Singapore Court) para 60.
% Hastycaenttere ME eSparas 73 and 105.

261
 Awards (SIAC Rules 32 to 33)

substance of the dispute or affect the final resolution of the parties’ rights may not require
detailed reasoning.*°

7. Rule 32.5

Unless otherwise agreed by the parties, the Tribunal may make separate Awards on different
issues at different times.
a. Multiple awards
14.26 Consistent with Singapore law,?” a tribunal may render multiple awards to help it conduct an
efficient and cost-effective arbitration unless otherwise agreed by the parties. Separate awards
can be rendered on disparate issues such as liability, quantum, and costs.3®
14.27 Each award must be final as to the issues it addresses.?9

8. Rule 32.6

If any arbitrator fails to cooperate in the making of the award, having been given a reasonable
opportunity to do so, the remaining arbitrators may proceed. The remaining arbitrators shall
provide written notice of such refusal or failure to the Registrar, the parties, and the absent
arbitrator. In deciding whether to proceed with the arbitration in the absence of an arbitrator,
the remaining arbitrators may take into account, amongst other things, the stage of the arbi-
tration, any explanation provided by the absent arbitrator for his refusal to participate and the
effect, if any, upon the enforceability of the Award should the remaining arbitrators proceed
without the absent arbitrator. The remaining arbitrators shall explain in any Award made the
reasons for proceeding without the absent arbitrator.
a. Uncooperative arbitrator
14.28 Rule 32.6 seeks to prevent a partisan or otherwise uncooperative arbitrator on a three-person
tribunal delaying the arbitration or frustrating it altogether by failing to cooperate in making
the award. It is consistent with Rule 32.7, which allows the tribunal to decide an issue by a
majority.

14.29 The tribunal ‘may’ proceed with the arbitration in the absence of an uncooperative arbitra-
tor after giving him or her a reasonable opportunity to cooperate. In contrast, the 2013
SIAC Rules stipulated that the remaining members of the tribunal ‘shall’ proceed in such
circumstances. The change signals that the tribunal has a choice. If an arbitrator is not
being responsive to the other members of the tribunal or uncooperative in the making of
the award, the remaining members can continue their efforts to engage with the recalcitrant
arbitrator, they could choose to proceed in his or her absence, or they could consult with
the SIAC Secretariat as to whether the arbitrator should be removed and replaced pursuant
to Rule 17.
14.30 Proceeding without an arbitrator might be appropriate if an arbitrator fails to attend
tribunal deliberations, fails to review submissions and evidence, or refuses to submit or

36 TMM Division Maritima (n 27) para 105.

37 TAA, s19A; AA, s 33.
38 As explained in para [14.03], a decision on jurisdiction alone is not enforceable as an award under
—— law.
SIAC Rules (2016), Rule 32.11; LAA, s 19B(1); AA, s 44(1).

262
 A. Rule 32—The Award

comment upon drafts of an award as requested. If there is a broader problem with the
arbitrator, or the problems arise at an early stage of the arbitration, Rule 17.2 may apply,
resulting in his or her removal and replacement by the SIAC President.*® A difference of
opinion as to how a tribunal should decide an issue, however, does not constitute a lack
of cooperation.
A decision to exclude an arbitrator from the arbitration cannot be taken lightly. Indeed, in 14.31
a recent case arising in Spain, two arbitrators were held personally liable for having done so.
The excluded arbitrator was found by the Spanish court on review not to have demonstrated
bias or sought to obstruct the arbitration, thus rendering his exclusion from tribunal delib-
erations inappropriate and a violation of Spanish law.*'
In order to avoid a wrongful exclusion of an arbitrator, Rule 32.6 was developed in 2016 to 14.32
require that notice be given to the allegedly uncooperative arbitrator (as well as the parties
and the Registrar) so that the arbitrator may be given an opportunity to put forward his or
her version of events. This constitutes an exception to the general principle that tribunal
deliberations are to remain confidential.4? In deciding whether to proceed in the absence
of an arbitrator, the remaining arbitrators may take into account factors such as the stage
of the arbitration, any explanation provided by the absent arbitrator for his or her non-
participation, and whether proceeding without that arbitrator will have any effect on the
enforceability of the award. The remaining arbitrators shall also state in the award the reasons
for proceeding without the absent arbitrator.

9. Rule 32.7

Where there is more than one arbitrator, the tribunal shall decide by a majority. Failing a
majority decision, the presiding arbitrator alone shall make the Award for the tribunal.
a. Majority rulings
A three-person tribunal can decide issues by a majority or, if there is no majority, by the 14.33
presiding arbitrator alone. This gives the presiding arbitrator considerable power and thus
encourages the co-arbitrators to work with the presiding arbitrator in order to ensure their
views are taken into account.

10. Rule 32.8

The Award shall be delivered to the Registrar, who shall transmit certified copies to the parties
upon full settlement of the costs of the arbitration.
a. The Registrar issues the award
The tribunal should not issue an award directly to the parties. Rather, once an award has been 14.34
scrutinized and approved pursuant to Rule 32.3, the tribunal must send certified copies or
multiple signed originals of the award to the SIAC Registrar, who is responsible for dispatch-
ing it to the parties.
a Re PeTanne fcr
Rule 17.2, see Ch 8, paras [8.118—8.119].
onon
40 For adiscussi
or), Casacién E
“ pare v Luis Jacinto Ramallo Garcia (arbitrator) and Miguel Temboury Redondo (arbitrat
ion Act
Infraccién Procesal num 3252/2014/decision of 15 February 2017. Art 21.1 of the Spanish Arbitrat
badfaith,
requires arbitrators todischarge faithfully theirfunctions orbe liable forany damage caused bytheir
wilful disregard, or fraud.
42 SIAC Rules (2016), Rule 39.1.
263
 Awards (SIAC Rules 32 to 33)
ne
14.35 Rule 32.8 allows the SIAC Registrar to ensure that the Secretariat has sufficient funds to
cover the fees and expenses of the Secretariat and the arbitrators before the award is released
to the parties.

11. Rule 32.9

The Tribunal may award simple or compound interest on any sum which is the subject of the
arbitration at such rates as the parties may have agreed or, in the absence of such agreement,
as the Tribunal determines to be appropriate, in respect of any period which the Tribunal
determines to be appropriate.

a. Interest
14.36 A SIAC tribunal has the power to award simple or compound interest on any sum, subject to
any agreement of the parties and any mandatory laws to the contrary.”
14.37 Post-award interest cannot be ordered under the 2007 and 2010 SIAC Rules.” This appears
to reflect the fact that both the IAA and the AA automatically impose post-award interest
on any sum ordered to be paid up to the date of payment at the rate attaching to a judgment
debt unless the award otherwise directs.*°
14.38 While this regime works well enough for arbitrations seated in Singapore, it poses potential
problems for SIAC arbitrations held outside Singapore where the applicable arbitration law
might not provide a means of securing post-award interest. Thus, the 2013 and 2016 SIAC
Rules allow a tribunal to award interest ‘in respect of any period’, without qualification.

12. Rule 32.10

In the event of a settlement, and if the parties so request, the Tribunal may make a consent
Award recording the settlement. If the parties do not require a consent Award, the parties shall
confirm to the Registrar that a settlement has been reached, following which the Tribunal shall
be discharged and the arbitration concluded upon full settlement of the costs of the arbitration.
a. Consent awards
14.39 Parties to a dispute may request the tribunal to issue a consent award recording the terms of
any settlement they have reached, rather than simply terminating the arbitration, in order
to facilitate enforcement of the settlement agreement.** A consent award has the same status
and legal effect as any other award.*”
14.40 Rule 32.10 provides that a tribunal ‘may’ render a consent award.“® A tribunal may decline
a request to issue a consent award if, for instance, it suspects that the parties have made the

“3 Under the 2013 SIAC Rules (Rule 1.1), a SIAC tribunal’s powers are subject to any mandatory laws to the
contrary. The 2016 SIAC Rules do not contain a similar provision. Nonetheless, as explained in Ch 5, a tribunal
should take into account any mandatory provisions of the applicable law. For example, Shari'a law prohibits
the charging of interest (ie riba): OMH Aljazy, ‘Jurisdiction of Arbitral Tribunals in Islamic Law (Shari’a)’ in
MA Fern4ndez-Ballesteros and D Arias (eds), Liber Amicorum Bernardo Cremedes (La Ley, 2010) pp 65, 78.
4 SIAC Rules (2010), Rule 28.7 and SIAC Rules (2007), Rule 27.6 limit the tribunal's power to award
interest to the period ‘ending not later than the date of the award’. ,
45 IAA, s 20(3); AA, s 35(3).
46 TAA, s 18; 1985 UNCITRAL Model Law, Art 30(2); AA, s 37.
47 IAA, s 18(a); AA, s 37(2)(c).
“8 SIAC Rules (2016), Rule 32.10, This is consistent with Singapore law: IAA, s 3(1); 1985 UNCITRAL
Model Law, Art 30(1): ‘If, during arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall

264
 A. Rule 32—The Award

request in order to cover up or profit from illegal conduct.*? Ultimately, the preservation of
the integrity of SIAC and the tribunal must prevail over party autonomy.
Consent awards are subject to scrutiny by the SIAC Registrar pursuant to Rule 32.3. The 14.41
Registrar will require thar all costs of the arbitration be paid before the consent award is
transmitted to the parties.

13. Rule 32.11

Subject to Rule 33 and Schedule 1, by agreeing to arbitration under these Rules, the parties
agree that any Award shall be final and binding on the parties from the date it is made, and
undertake to carry out the Award immediately and without delay. The parties also irrevocably
waive their rights to any form of appeal, review or recourse to any State court or other judicial
authority with respect to such Award insofar as such waiver may be validly made.

a. Awards are final and binding

Subject to Rule 33 and Schedule 1 of the SIAC Rules, a SIAC award is final and binding on 14.42
the parties, who agree to carry out the award immediately and without delay. The parties
further agree (by virtue of their choice of the SIAC Rules) to waive irrevocably their rights to
appeal an award insofar as such waiver may be validly made.
As a matter of Singapore law, an award is also binding on ‘any persons claiming through or 14.43
under [the parties] and may be relied upon by any of the parties by way of defence, set-off
or otherwise in any proceedings in any court of competent jurisdiction’
.5°Issues determined
by the tribunal (and which fall within its jurisdiction) are thus subject to the doctrine of res
judicata.>'
A SIAC award is final and binding ‘from the date it is made’,>? which, under Singapore law, is the 14.44
date when it has been signed and delivered to the parties.53
b. Exceptions to the final and binding nature ofan award
The parties’ contractual obligation to comply immediately with an award is subject to each 14.45
party's right to seek an interpretation or correction of an award within 30 days of its receipt
pursuant to Rule 33 (see part B of this chapter).

terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the
settlement in the form of an arbitral award on agreed terms.’ (Emphasis added.) .
49 There has been speculation in the past that some arbitrations have been started and then settled in order
to give an official seal to what is in essence agift from one party to the other or potentially money laundering.
© IAA, s 19B(1); AAs 44(1).
51 Econ Piling PteLtd v Shanghai Tunnel Engineering Co Ltd(2011] 1 SLR 246 (Singapore High Court) para
58, citing Halsburys Laws ofSingapore (LexisNexis 2003 Reissue) Vol 2, para 20.117:
The doctrine of res judicata which applies to proceedings in court applies similarly to matters
referred to arbitration. Upon the award being made on the matter in dispute, the original cause ofaction
isextinguished. The rights of the successful party no longer lie in the original cause of action but in
the right to enforce the award in its terms. Where, however, the referenceto arbitration does not
confer upon the arbitrators jurisdiction toresolve allmatters in dispute between the parties, then the
original cause of action remains in existence asregards those excluded matters.
(Emphasis
inthe original.)
52 SIAC Rules (2016), Rule 32.11.
53 IAA, s 19B(3);
AA, s44(3).
265
 Awards (SIAC Rules 32 to 33)

14.46 Further, as a matter ofSingapore law, the parties’ waiver of rights of challenge under Rule 32.11
will not preclude a losing party from challenging an award before the Singapore High Court
on the limited grounds recognized by Singapore law. In particular, pursuant to the terms of the
1985 UNCITRAL Model Law, an award rendered in Singapore can be challenged on the fol-
lowing grounds: alack of jurisdiction or due process; the dispute was not arbitrable; or the award
is in conflict with the public policy of Singapore.™ In addition, an award may be set aside under
Singapore law if the making of the award was induced or affected by fraud, or corruption, or a
breach of the rules of natural justice which has prejudiced the rights of any party.°°
14.47 The parties, however, cannot seek to set aside an award under Singapore law for alleged
errors in the tribunal's findings of fact or determinations of law.°* While the AA (which,
broadly speaking, applies to Singapore domestic arbitrations—see Chapter 2) allows a party
to appeal questions of law, this is subject to any agreement of the parties precluding such an
appeal.5” Rule 32.11 is likely to represent such an agreement.*®
14.48 An application to set aside an award in Singapore must be filed with the Singapore High
Court within three months of a party's receipt of the award or from the date the tribunal dis-
poses of a party’s request for a correction or interpretation.*? However, the Singapore Court
of Appeal has held that if a party fails to exercise its ‘active’ remedy of seeking to set aside an
award within three months of its receipt, it will still retain a ‘passive remedy’ which allows it
to resist, on similar grounds, an application for the enforcement of the award.
14.49 Finally, a decision issued by an emergency arbitrator is not final, nor is it an award.®' That
lack of finality is reflected in the opening words of Rule 32.11, which notes that the rule is
subject to Schedule 1. Schedule 1, in turn, provides that an emergency arbitrator's decision
is not final (although it is binding until such time as it lapses or is replaced by a decision of
the tribunal).®

14. Rule 32.12

SIAC may, with the consent of the parties and the Tribunal, publish any Award with the names of
the parties and other identifying information redacted.
a. Publication ofawards
14.50 In an effort to enhance transparency in the arbitral process and to develop a body of SIAC
jurisprudence, SIAC introduced a policy in 2013 of publishing redacted arbitral awards. The

*4 TAA, s 3(1); 1985 UNCITRAL Model Law, Art 34; AA, s 48. For a discussion of the concept of public
policy in the context of arbitration awards under Singapore law, see Ch 2, paras [2.105—2.112].
coe s 24; AA, s 48(1)(a)(vi)—-(vii). For a discussion of the rules of natural justice under Singapore law,
see
56 TAA, s 3(1); 1985 UNCITRAL Model Law, Art 34(1); AA, s 48(1)(a).
57 AA, s 49(2).
°8 An exclusion provision such as Rule 32.11 in institutional arbitration rules can nullify a party's right of
pio lp of law: R Merkin andJ Hjalmarsson, Singapore Arbitration Legislation Annotated (Informa

°9 TAA, s 3(1); 1985 UNCITRAL Model Law, Art 34(3); AA, s 48(2).
60 PT FirstMedia TBK v Astro Nusantara International BV {2014} 1 SLR 372 (Singapore Court of Appeal)
para 71. See Ch 2, paras [2.30-2.33].
61 See Ch 13, paras [13.23-13.24],
62 SIAC Rules (2016), Sch 1, para 10.
63 SIAC Rules (2013), Rule 28.10.

266
 B. Rule 33—Corrections and L[nterpretations

SIAC Rules were amended in 2016 to make clear that SIAC will only publish an award with the
consent of the parties and the tribunal.*

If the necessary consents have been obtained, the SIAC Secretariat will consult with the parties 14.51
and the arbitrators to ensure that any relevant identifying information is redacted.®
The first volume of redacted SLAC awards was published in 2012. SIAC is expected to publish 14.52
further volumes consistent with its commitment to transparency and thought leadership.
Singapore court decisions relating to arbitration cases can also be published. The court may give 14.53
directions requiring the zedaction of part of a judgment at the request of a party and/or delay
the publication of a decision relating to an arbitration by up to ten years if it considers this to be
appropriate.®’
There is thus a rich and growing body of SIAC awards and arbitration-related Singapore court 14.54
judgments publicly available which can be considered by counsel and arbitrators while crafting
their legal submissions and awards, respectively. The developing jurisprudence also helps to
reinforce Singapore's reputation as a stable and predictable place for arbitration and thus con-
tributes to its continued success.®

B. Rule 33—Corrections and Interpretations

of Awards and Additional Awards
Both the SIAC Rules and Singapore law recognize several exceptions to the principle that a 14.55
tribunal isfunctus officio® after rendering an award.
First, the issued award may be partial, leaving the remaining issues to be determined in a 14.56
subsequent award or awards.”° Second, a tribunal may correct an award within 30 days of
the date of the award on its own initiative or upon receipt of a request from a party.”' Third,
a tribunal may provide an interpretation of an award if it receives a request to do so within
30 days of its receipt bya party.’? Fourth, a tribunal may make an additional award in relation
to claims presented in the arbitration but omitted from the award if it receives a request to do
so within 30 days of a party’s receipt of an award.”3 Lastly, under the [AA and AA, a court may
suspend setting-aside proceedings for a period of time to give the tribunal an opportunity to

64 SIAC arbitrators agree to assign all copyright in any SIAC award to SIAC for a nominal sum of $$1.00
when accepting an appointment under the SIAC Rules.
65 SIAC Practice Note for Administered Cases (2 January 2014) para 32.
66 Lexis Nexis, ‘Singapore Arbitral Awards 2012’, available at <http://www.lexisnexis.com.sg/store/
catalog/apac/productdetail.jsp?pageName=relatedProducts&catld=sgcat2 &prodId=prod900 1278&cutm_
source=maxwellchambers&utm_medium=website& utm_content=siac&utm_campaign=SM1210-007>
(accessed 27 March 2017).
67 IAA, s 23(4).
68 SeeCh 1.
69 Fyunctus officio literally means the tribunal's office is defunct; it no longer has the power to determine a
70 SIAC Rules (2016), Rule 32.5; IAA, s 19A; AA,s 33(1).
7 SIAC Rules oe Rules 33.133.2; IAA, s 3 (1); 1985 UNCITRAL Model Law, Art 33(1)-(2); AA, s
1a SINGRules(2016), ule394;IAA, #3(1)1985 UNCITRAL Model Law, Art 33(1)(b); AA,5 43(1)(b).
73 SIAC Rules (2016), Rule 33.3; IAA, s 3(1); 1985 UNCITRAL Model Law, Art33(3); AA, s 43(4).
267
 Awards (SIAC Rules 32 to 33)
ea een na pe SRE INT
resume the arbitral proceedings or take such other action as may ‘eliminate the grounds for
setting aside’ an award.”4 Subject to these grounds, as a matter of Singapore law, a tribunal
cannot ‘vary, amend, correct, review, add to or revoke’ a previously issued award.’
14.57 The remainder of this part of the chapter focuses on a tribunal's powers to correct an award
(Rules 33. 1—33.2), issue an additional award (Rule 33.3), and interpretan award (Rule 33.4).

1. Rule 33.1

Within 30 days of receipt of an Award, a party may, by written notice to the Registrar and to
any other party, request the Tribunal to correct in the Award any error in computation, any
clerical or typographical error or any error of a similar nature. If the Tribunal considers the
request to be justified, it shall make the correction within 30 days of receipt of the request.
Any correction, made in the original Award or in a separate memorandum, shall constitute
part of the Award.

a. Correction ofan award pursuant to a request from a party

14.58 A party may, within 30 days of receiving the award, request that the tribunal correct compu-
tational, clerical, or typographical errors or any errors of a similar nature in the award. The
request should be sent to the SIAC Registrar and copied to all other parties. The Registrar
will forward the request to the tribunal.
14.59 The 2013 SIAC Rules expressly provided that any other party may comment on a request for
the correction of an award within 15 days of the request.’® The tribunal has 30 days to make
any corrections it considers justified which can be extended by the SIAC Registrar.””
14.60 The types of corrections that have been made by SIAC tribunals include changing dates,
names, and addresses that are referenced in an award, correcting quotes that have been
extracted from correspondence, and correcting a tribunal’s computation of interest and the
costs of the proceedings.”
14.61 The tribunal can correct an award either by issuing a separate memorandum or amending
the original award. In both cases, the correction is deemed to form a part of the previously
issued award,79
14.62 Rule 32 applies to corrections made to an ‘award’. Thus, the corrections must be submitted
to the SIAC Registrar for scrutiny pursuant to Rule 32.3.8 The tribunal can decide the issue

74 TAA, s 3(1); 1985 UNCITRAL Model Law, Art 34(4); AA, s 48(3).
75 TAA, s 19B(2); AA, s 44(2). The Singapore High Court in ASG vASH [2016] SGHC 130 held that section
44 of the AA applies such that once a tribunal has issued its award, the tribunal becomes functus officio and has
no power to amend that award even if the tribunal subsequently accepts that the award contains certain deci-
sions which went beyond the parties’ agreement.
76 SIAC Rules (2013), Rule 29.1.
77 SIAC Rules (2016), Rule 33.5.
78 eg in Singapore Company v (1) Indonesian National and (2) Indonesian Company {2012] 1 SAA 195, the
SIAC tribunal re-issued an award with corrected language in relation to (a) the dates the respondents received
formal notice of the claimant's request for arbitration, and (b) the individuals authorized to register the award,
as requested by the claimant. :
79 SIAC Rules (2016), Rule 33.1; IAA, s 3(1); 1985 UNCITRAL Model Law, Art 33(1); AA, s 43(2).
8 It is an open question whether a decision to refuse a request for correction is also subject to the scrutiny
of the SIAC Registrar. In practice, the tribunal will need to communicate its decision on the request to the
Registrar, who will thus have an opportunity to comment on the decision before it is communicated to the
parties.

268
 B. Rule 33—Corrections and Interpretations

by a majority, failing which the presiding arbitrator alone can make the corrections.®’ The
Registrar will issue the corrections to the parties after any necessary payments have been
received.®

2. Rule 33.2

The Tribunal may correct any error of the type referred to in Rule 33.1 on its own initiative
within 30 days of the date of the Award.

a. Correction ofan award on the tribunal’ initiative

A tribunal may correct an award on its own initiative for any computation, clerical or typo- 14.63
graphical errors, or any error of a similar nature. It must do so within 30 days from the date
of the award. Any corrections made by the tribunal are subject to scrutiny by the Registrar
pursuant to Rule 32.3.

3. Rule 33.3

Within 30 days of receipt of an Award, a party may, by written notice to the Registrar and to
the other party, request the Tribunal to make an additional Award as to claims presented in the
arbitration but not dealt with in the Award. If the Tribunal considers the request to be justi-
fied, it shall make the additional Award within 45 days of receipt of the request.
a. Additional awards
Upon receipt of an award, a party may discover that it does not dispose of an issue that it 14.64
expected to be determined. In such circumstances, it may request the tribunal within 30 days
of receipt of the award to make an additional award concerning a claim presented in the
arbitration, but not dealt with in the issued award. Rule 33.3 does not apply in circumstances
where the proceedings have been bifurcated (or trifurcated) by the tribunal such that certain
issues have been scheduledto be determined in subsequent phases of the arbitration pursu-
ant to Rule 32.5.
The request for an additional award should be submitted to the Registrar and copied to all 14.65
other parties. The Registrar will transmit the request to the tribunal. Should the tribunal
determine that an additional award is warranted, the Registrar will, among other things,
consider whether the Secretariat has sufficient funds to cover the cost of the additional
award. If necessary, the Registrar can direct the parties to submit additional funds pursuant
to Rule 34.4 to cover the cost of the additional award.
The 2013 SIAC Rules expressly provide that the other party (or parties) will have 15 days to 14.66
comment on a request for an additional award. While this is omitted from the 2016 SIAC
Rules, the other party should ordinarily be given the opportunity to comment on a request
for an additional award. Indeed, an additional award rendered by a tribunal within only
three days of the tribunal’s receipt of a party’s request for pre-award interest and without the
other party having an opportunity to respond to the request was set aside in LW Infrastructure
Pte Ltd v Lim Chin San Contractors Pte Ltd.™

81 SIAC Rules (2016), Rule 32.7.

82 SIAC Rules (2016), Rule 32.8.
83 SIAC Rules (2013), Rule 29.3.
8 [2013] 1 SLR 125 (Singapore Court of Appeal) paras 75-76.
269
 Awards (SIAC Rules 32 to 33)
cere eesti nee
14.67 The tribunal has 45 days from its receipt of the request to issue the additional award if it
considers the request to be justified. The Registrar may extend the time limits prescribed by
Rule 33.3.8

14.68 Rule 32 applies to the additional award. Thus, among other things, it must be submitted to
the Registrar for scrutiny and can be determined by a majority of the arbitrators, or, if neces-
sary, the presiding arbitrator alone.
14.69 In contrast to the correction of an award under Rule 33.2, the SIAC Rules do not expressly
state whether a tribunal can issue an additional award on its own motion, and thus it appears
doubtful that it can.

4. Rule 33.4

Within 30 days of receipt of an Award, a party may, by written notice to the Registrar and the
other party, request that the Tribunal give an interpretation of the Award. If the Tribunal con-
siders the request to be justified, it shall provide the interpretation in writing within 45 days
after receipt of the request. The interpretation shall form part of the Award.

a. Interpretation of an award
14.70 In the event that aspects of an award are unclear or ambiguous, a party may request within
30 days of receipt of the award that the tribunal clarify a specific part or parts of the award.®
A request for an interpretation of an award, however, is not meant to allow a party to re-argue
a finding reached by the tribunal.
14.71 The request must be sent to the Registrar and copied to any other party. The Registrar will
then forward the request to the tribunal.
14.72 Again, the SIAC Rules no longer provide that the other party (or parties) must be given
15 days from its receipt of the request for an interpretation of an award to respond with its
comments.®” Nonetheless, the other party should ordinarily be given such an opportunity.
14.73 If the tribunal considers the request to be justified, it has 45 days to issue an interpretation.
The Registrar may extend these time limits.8* An interpretation can be determined by a
majority of the tribunal, failing which, the presiding arbitrator alone will decide.®
14.74 Any interpretation by the tribunal forms part of the award. Thus, an interpretation should
be sent to the Registrar for scrutiny pursuant to Rule 32.3. Once it has been approved, the
Registrar will issue the interpretation to the parties.

5. Rule 33.5

The Registrar may, if necessary, extend the period of time within which the Tribunal shall
make a correction of an Award, interpretation of an Award or an additional Award under
this Rule.

85 SIAC Rules (2016), Rule 33.5.

86 SIAC Rules (2016), Rule 33.4; LAA, s 3(1); 1985 UNCITRAL Model Law, Art 33(1)(b); AA, s 43(1)(b).
87 Such a stipulation is made in SIAC Rules (2013), Rule 29.4.
88 SIAC Rules (2016), Rule 33.5.
89 SIAC Rules (2016), Rule 32.7.
90 SIAC Rules (2016), Rule 32.8.

270
 B. Rule 33—Corrections and Interpretations

a. Extensions oftime
The Registrar may extend the time limits set forth in Rules 33.1 to 33.4 upon a request from 14.75
a party or the tribunal, or on the Registrar’s own initiative. The tribunal does not have the
power to do so.*!
6. Rule 33.6
‘The provisions of Rule 32 shall apply in the same manner with the necessary or appropriate
changes in relation to a correction of an Award, interpretation of an Award and to any add-
itional Award made.
a. Application ofRule 32
As already mentioned, the requirements for an award prescribed in Rule 32 apply to the 14.76
correction of an Award, interpretation of an Award and the issuance of an additional award
under Rules 33.1 to 33.4. Thus, these documents must be submitted to the Registrar for
scrutiny.2? Furthermore, decisions can be made bya majority of the arbitrators, failing which,
by the presiding arbitrator alone.%? Corrections, interpretations and additional awards are
transmitted to the parties by the Registrar.” Finally, a corrected, interpreted, or an additional
award is final and binding on the parties from the date it is made.®

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 A.

(SIAC RULES 34 TO 37)

A. Arbitration and Litigation Costs 5. Rule 34.5 15.41

Compared 15.02 6. Rule 34.6 15.43
B. Costs in SIAC Arbitration 15.10 7, Rewe 47 15.46
2. SIAC administration fees and 9. Rule 34.9 15.50
expenses 15.13 E. Rule 35—SIAC Costs ofthe
3. Arbitrator fees and expenses 15.16 Arbitration 15.51
4. Party's legal and other costs 15.26 1. Rule 35.1 15.51
C. SIAC Arbitration Costs Compared to 2. Rule 35.2 15.51
those of the ICC and the HKIAC 15.28 FE Rule 36—Tribunal’s Fees and Expenses 15.55
: 1. Rule 36.1 15.55
. Rule 34— 15.30
r 1. Rule aia SEeey nae 2. Rule 36.2 15.63
2. Rule 34.2 15.33 G. Rule 37—Party’s Legal and Other
3. Rule 34.3 15,38 Costs 15.64
4. Rule 34.4 15.40 1. Rule 37 15.64

15.01 Parties negotiating a contract have to decide whether to agree to have disputes determined
by municipal courts or through arbitration. Cost can be a major factor in that decision. Part
A of this chapter begins with a look at the cost of arbitrating a dispute in comparison to hav-
ing a dispute determined by litigation. There follows an analysis of the key features of the
assessment of costs in SLAC arbitration in part B. In part C, the SIAC costs of arbitration are
compared to the costs payable by parties in disputes administered by two of SIAC’s regional
competitors, the ICC and HKIAC. Finally, Rules 34 to 37 of the SIAC Rules (2016), which
govern the calculation and apportionment of the fees and expenses of an arbitral tribunal,
the SIAC Secretariat, and individual party costs, are each considered in turn in parts D to G.

A. Arbitration and Litigation Costs Compared

15.02 The potential costs payable by parties to an arbitration fall into four broad categories.
15.03 First, unlike the salary of a judge, which will normally be paid by the State where a court
sits, the fees and expenses of the arbitrators, and those called upon by the arbitrators for
assistance, must be paid by the parties to an arbitration. Second, while a municipal court
system is generally provided without significant direct costs tothe participants, parties toan

272
 A. Arbitration and Litigation Costs Compared
rere
arbitration must bear the cost ofany instirurion, such as SIAC, called upon to administer the
arbitration. Third, the parties must bear the costs of any hearing room and accompanying
facilities used during an arbitration. Finally, the parties must pay their own costs for partici-
pating in the arbitration, the professional fees and expenses of their lawyers and witnesses,
and may be ordered to pay some or all of the costs of their opponent.
While the parties wo an arbitration are responsible for all these costs, it does not necessarily 15.04
follow that arbitration is more expensive than domestic litigation. The evidentiary hearing is
usually the most expensive part of any dispute. Indeed, almost everyone in the hearing room
will be charging a fee of some kind. An arbitration hearing, however, is usually much shorter
in duration than a hearing of a similar sized dispute before a municipal court.
The English High Court case of Three Rivers District Council and ors v The Governor and 15.05
Company of the Bank of Englandis an extreme example of how costs associated with court
proceedings can spiral out of control due to prolonged hearings, among other reasons.’ The
trial in that case began with the plaintiff breaking the English record for the length of a party's
opening submissions by addressing the court for 80 hearing days.? The defendant proceeded
to break the record again by delivering an opening submission that lasted 119 days.? Not a
single witness had been heard in over a year of court time. The case at first instance lasted
12 years.*
Arbitrations are generally ‘front loaded’ in the sense that the parties are compelled to com- 15.06
mit to their positions at an early stage of the process. Low-value or relatively straightforward
arbitration claims can be, and often are, settled or determined on the basis of the documents
alone without the need for a hearing. For arbitrations that do go to hearing, the parties usu-
ally only make short opening statements, leaving the majority of the hearing time available
for witness and expert cross-examination. The documents relied upon by the parties are gen-
erally admitted without having to be formally read into the record asisoften the case in court
litigation (and which partly explains the extraordinary lengthy opening submissions in the
Three Rivers District Council case). Closing submissions in an arbitration are often provided
in writing. The result isthat a high value dispute determined by arbitration may be set down
for a hearing over a matter of days or weeks, rather than months (and occasionally years), as
isoften required in domestic litigation.
Petroleum Corporation and Occidental Exploration andProduction
For example,inOccidental 15.07
was heard
_ Company v Republic of Ecuadoran \CSID arbitration claim worth US$1.7billion
22 days.’ In Ceskoslovenska Obchodni Banka AS v Slovak Republica claim
_ inapproximately
_ worth US$1 billion was dealt with in eight hearing days.° This emphasis on efficiency can
7also be seen in many SIAC arbitrations. SIAC has advised that in one case, a S$6 million
aand inee
cana
ating tennanapedmaraig seria he, pee Aa mma
ne ee ee a US$4 million claim was
 Costs (SIAC Rules 34 to 37)

disposed ofafter a three-day hearing on the merits. In a matter under the 2013 SIAC Rules,
a sole arbitrator was appointed to adjudicate a dispute of $$10,000 subject to the minimum
fee cap under SIAC’s Schedule of Fees (ie $$6,250). The sole arbitrator issued a detailed
and thorough 61-page final award within 12 months of being appointed, despite having
to deal with substantial pre- and post-hearing submissions, witness statements and juris-
dictional issues. The sole arbitrator was paid 95 per cent of the S$6,250 fee cap. In another
matter under the 2013 SIAC Rules, a sole arbitrator was appointed in a dispute arising out
of ashareholders’ agreement where the sum in dispute was in excess of S$250 million. The
proceedings included a full merits hearing with oral testimony from six witnesses and two
rounds of post-hearing submissions. The final award was issued 226 days from the com-
mencement of proceedings and 185 days from the constitution of the tribunal. The sole
arbitrator was paid approximately 40 per cent of the maximum fee cap prescribed under the
Schedule of Fees. In a matter under the 2010 SIAC Rules, a sole arbitrator was appointed
to adjudicate claims and counter-claims valued at over S$24 million pursuant to an agree-
ment which required the arbitration to be concluded within 120 days of commencement.
The proceedings involved multiple applications for urgent interim relief, multiple rounds
of submissions, numerous witness statements, and a four-day hearing. Despite the complex
substantive and procedural issues in the case, a final award was issued within 120 days.
SIAC scrutinized the award in three days. Finally, on a number of occasions, SIAC has
appointed an Emergency Arbitrator within a few hours of receiving and accepting an appli-
cation for emergency interim relief.
15.08 Another factor to consider is that an arbitration award is intended to be, and usually is, the
final decision required in order to resolve a dispute. In contrast, court litigation may lead to
a series of costly appeals to higher courts.
15.09 With that said, users of international arbitration are rightly concerned about the increas-
ing cost of arbitration.® With those concerns in mind, the SIAC Rules expressly require the
tribunal, the SIAC Court, and the SIAC Secretariat to keep arbitration costs to a minimum
through effective case management (see Rules 17.3, 19.1, and 41.2). The parties, external
counsel, and in-house counsel also need to do their part to ensure that arbitration proceed-
ings are conducted efficiently and cost-effectively.

B. Costs in SIAC Arbitration

15.10 The costs for which a party to a SIAC arbitration may be liable include:
(a) a filing fee to commence the arbitration;
(b) the SIAC Secretariat’s fees and expenses for administering the arbitration;

* In 2015, 68 per cent of users cited the cost of arbitration as one of its three worst characteristics. Queen
Mary University of London's School of International Arbitration and White & Case, ‘2015 International
Arbitration Survey: Improvements and Innovations in International Arbitration’ (2015) available at <arbitra-
tion.qmul.ac.ukj/docs/164761.pdf (accessed 30 November 2017).
* To reduce the time and costs associated with the arbitral process, external and in-house counsel can con-
sider what procedures should be adopted at the preliminary meeting held pursuant to Rule 19.3 which would
facilitate an efficient procedure, whether the proceedings should be bifurcated or trifurcated ifthere are control-
ling issues that could be dispositive of some or all of the entire case (eg jurisdiction and arbitrability), whether
one, two, or more rounds of pleadings are necessary, the extent to which document production is required, and
whether an evidentiary hearing is required or if the matter can be determined on the documents alone.

274
 B. Costs in SIAC Arbitration

(c) the fees and expenses of the arbitrator(s), including any emergency arbitrators, and any
experts or others called upon to assist the tribunal; and
(d) the parties’ legal and other costs.
Each of these costs are considered in turn. Before doing so, the relevant terminology is clari- 15.11
fied. The costs referred to in paragraphs 15.10(a) to (c) are defined in Rule 35.2 as the ‘costs
of the arbitration’. The description of these costs used in this book, however, is ‘SIAC costs of
the arbitration’. The addition of the word ‘SIAC is appropriate as the expression ‘costs of the
arbitration’ as used in the SIAC Rules excludes the parties’ legal and other costs."

1. Case filing fee

The claimant must pay a non-refundable fee of $$2,140 (inclusive of7per cent Singapore 15.12
goods and services tax (GST)) for Singapore parties or S$2,000 (US$1,481)"' for overseas
parties (who benefit from not having to pay Singapore GST) when filing the notice of arbi-
tration.'? The respondent must also pay a filing fee if it brings a counterclaim."3

2. SIAC administration fees and expenses

SIAC charges a fee for administering an arbitration."4 The fee is calculated for monetary 15.13
claims on an ad valorem basis (ie as a small proportion of the amount in dispute). The admin-
istration fee is determined using a sliding scale whereby the proportionate cost charged by
SIAC reduces as the amount of the claim increases. The ad valorem method of calculating fees
is discussed further at paragraphs [15.17-15.21]. The administration fees for non-monetary
claims are fixed at the discretion of the Registrar.
The SIAC Secretariat may also seek recovery of any out-of-pocket expenses. Such expenses 15.14
include any disbursements for couriers, stationary, photocopying, facsimile transmissions,
room charges at Maxwell Chambers (if used for a hearing in Singapore and organized by
SIAC), and transcription services (if arranged through SIAC).
Certain additional services provided by the SIAC Secretariat attract a fee, as set out in the 15.15
following list.
* Emergency arbitrator fees. A request for the appointment of an emergency arbitrator must
be accompanied by payment to SIAC of an administration fee of $$5,350 (inclusive of
7 per cent GST) for Singapore parties and S$5,000 (without GST) for overseas parties.
A deposit of S$30,000 is also required to be paid to cover the $$25,000 fixed fee for the
emergency arbitrator plus his or her estimated expenses. '> (The Registrar has the discretion
to adjust the emergency arbitrator's fee if appropriate.)

» Incontrast, therules of other arbitral institutions include theparties’ costsoflegal representation in the
of ‘costs of the arbitration’. ICC Rules (2017), Art 38(1), for instance, uses the term, ‘costs ofthe arbi-
definition
tration’ to refer not only to the fees and expenses of the tribunal and ICC Secretariat, but also to the ‘reasonable
legal and other expenses incurred by the parties forthe arbitration’. HKIAC Rules (2013), Art 33.1 also defines
arbitration’ asincluding the cost of legal representation.
Se sabrina pemenrtnethe baeaeolvteged ISSolistenaonvveachatige weoF USBT: : $$1.35 as at6
2017.
12 SIAC Rules (2016), Rule 3.1(k). The filing fee is not credited towards SIAC’s administration fees, which
wD
_ 13SIAC Rules
SIAC Rules
ad ee
(2010),Rule
4.00 ealara sbve iMateohdwapbdie wevicerts coxindclon Wi
equipment, transcription, and interpretation services, etc.
2ego SIACSchedule
ofFesinAppendix
275

7
 Costs (SIAC Rules 34 to 37)

fees. For cases that are not subject to the SIAC Rules but for which
¢ Arbitrator appointment
SIAC acts as an appointing authority (whether pursuant to an agreement ofthe parties or
when exercising its statutory powers of appointment),'® SIAC charges a non-refundable
fee to appoint an arbitrator.'? For Singapore parties, the fee (inclusive of 7per cent GST)
ranges from $$3,210 for one arbitrator to $$5,350 for the appointment of three arbitra-
tors." Overseas parties pay S$3,000 for the appointment of one arbitrator and up to
§$5,000 for the appointment of three arbitrators (less GST).
¢ Arbitrator challenge fees. Pursuant to the new SIAC Rule 15.3 introduced in 2016, a party
who challenges an arbitrator is required to pay a challenge fee of S$8,000 for overseas par-
ties and S$8,560 for Singapore parties (inclusive of 7 per cent GST).
° Taxation fees. At the end of an arbitration, an arbitral tribunal will usually assess the extent
to which a party is liable for another party’s costs. If the tribunal does not, and the parties
are unable to agree on the amount of costs a party can recover, the Registrar can be asked
to assess the amount of costs payable by a party in a process known as the ‘taxation’ of
costs.'? The SIAC Rules are consistent in this regard with section 21(1) of the LAA which
provides that ‘[a]ny costs directed by an award to be paid shall, unless the award otherwise
directs, be taxable by the Registrar of [SIAC]. A party that requests the taxation of costs
is required to pay the Registrar a fee between $$5,000 and $$25,000 calculated on an ad
valorem basis with reference to the amount of costs being assessed.”° In order to facilitate
enforcement, the Registrar's assessment of costs is deemed to ‘form part of the award of the
arbitral tribunal’.?!
Authentication fees. A party seeking enforcement of an arbitral award under the
New York Convention is required to tender a duly authenticated original award to
the court before which it seeks recognition and enforcement of the award.”* SIAC can
authenticate an award by confirming that it has been duly signed by the arbitrators.
The fee for doing so is S$150 (for each authenticated copy), plus $$10 for incidentals
and 7 per cent GST (for Singapore parties). The authentication fee for a non-SIAC
award (ie an award issued in an ad hoc arbitration or under the auspices of another
arbitral institution) is $$400 for the first authenticated copy and $$200 for each add-
itional authenticated copy, plus $$10 for incidentals and 7 per cent GST (for Singapore
parties)
.7

‘6 With that said, SIAC will not charge an appointment fee ifthe case is already being administered by SLAC,
for which separate fees are payable. As discussed in Ch 17, para [17.17], the SIAC President and the two SLAC
Vice-Presidents can perform the functions of an appointing authority for arbitrations seated in Singapore pur-
suant to the IAA, AA, and Government Gazette Notifications issued by the Singapore Chief Justice.
7 In contrast, for arbitrations subject to the SIAC Rules, there is no additional fee payable in the event that
the SIAC President is required to appoint an arbitrator pursuant to Rules 10.2, 11.3, 12.1, or 12.2.
'8 SIAC Schedule of Fees, ‘Appointment Fees’, available at <http://www.siac.org.sg/estimate-your-fees/siac-
schedule-of-fees> (accessed 20 March 2017).
' While the taxation of costs by a court official is a standard feature of common law court litigation, it is
relatively novel in international arbitration.
20 SIAC Schedule of Fees, ‘Assessment orTaxation Fees’, available at <http://www.siac.org.sg/estimate-your-
fees/siac-schedule-of-fees> (accessed 20 March 2017). This has been increased from a cost ofbetween S$1,000
Tou 1 September 2013 and 1 August 2014.
s 21(3).
22 New York Convention, Art IV(1). For a discussion ofthe enforcement of awards in Singapore, see Ch2.
23 SIAC’sauthenticationcharges are available at<http://www.siac. authentication-
in ai ima ate aR aa ni. hia pee
see

276
 B. Costs in SIAC Arbitration

* Certification fees. \f a party seeking enforcement ofan arbitral award under the New York
Convention is unable to tender a duly authenticated original award to the enforcement
court, the party may instead submit to the court a duly certified copy thereof. SIAC can
provide certified copies of an award or arbitration agreement for a fee of $$150 for each
certified copy, plus S$10 for incidentals and GST.?5

3. Arbitrator fees and expenses

A SIAC tribunal cannot set its own fees.” Tribunal fees are fixed by the SIAC Registrar at the 15.16
conclusion of a case (see Rule 36.1).
Prior to the introduction of the 2007 SIAC Rules, SIAC arbitrators were paid based on the 15.17
time spent working on a case at a fixed hourly rate,?” consistent with the long-standing prac-
tice of the LCIA.* Today, unless otherwise agreed by the parties, the fees of a SIAC tribunal
are calculated on an ad valorem basis with reference to the aggregate amount of the claims and
any counterclaims.” The ad valorem method of calculating tribunal fees is used by a num-
ber of other arbitral institutions, including the ICC, SCC, CIETAC, Dubai International
Arbitration Centre (DIAC), and Kuala Lumpur Regional Centre for Arbitration (KLRCA).
Notably, while the default position under the HKIAC Rules (2013) is to calculate an arbitra-
tor's fee based on an hourly rate,” parties to an arbitration under those rules may opt into the
calculation of a tribunal’s fees on an ad valorem basis.3'

A key advantage of the ad valorem method of calculating tribunal and SIAC Secretariat costs 15.18
is that a party can estimate the likely amount of such costs before the arbitration begins.
A party can do so for SIAC arbitrations by consulting the SIAC Schedule of Fees appended
to the 2016 SIAC Rules? (and reproduced at Appendix 1 herein) or inserting the claim
amount into the fees calculator available on SIAC’s website.3?
The ad valorem method can serve to discourage inflated claims, as the fees of the SIAC 15.19
Secretariat and the tribunal are directly linked to the amount claimed. Further, it incen-
tivizes the SIAC Secretariat and tribunal to be efficient and expeditious in the conduct
of the arbitration as more time spent on a matter does not necessarily translate into
more fees.

24 New York Convention, Art IV(1). For a discussion of the enforcement of awards in Singapore, see Ch 2.
25 SIAC’s Certification Charge is available at <http://www.siac.org.sg/estimate-your-fees/authentication-
20 March 2017).
certification-service> (accessed
26 SIAC Practice Note for Administered Cases (2 January 2014) para 11.
27 SIAC Practice Note on Arbitrator s’(1March
Fees 2006) para 5.
28 As noted inChapter 3, the 1991 SIAC Rules were largely based on the LCIA Rules (1985). Under the
LCIA Rules, arbitrators (and the LCIA Secretariat) arestill paid at anhourly rate: LCIA Schedule ofArbitration
Costs (effective 1 October 2014) paras 1(iii) and 2(i). ICDR arbitrators are also paid based on an hourly ordaily
rate: ICDR Rules (2014), Art 35.
23 SIAC Rules (2016), Rule 34.1.
39 HKIAC Rules (2013), Art 10.1 and Sch 2.

Admeiates wuary 201para

4)13.
‘ » STAC fees calculator provides anaverage maximum estimate based on the amoin
untdispute.
 Costs (SIAC Rules 34 to 37)

15.20 The obvious downside, however, is that a large monetary claim may not be technically chal-
lenging or complex. In such circumstances, the SIAC Secretariat and tribunal may earn
more fees than the actual time spent on the matter would ordinarily warrant. Conversely,
the monetary value of a claim may be relatively low, or not valued at all, yet the principles
at stake could be significant or the issues extremely complex, thereby suggesting that the
tribunal (and possibly the SIAC Secretariat) should be paid more than the amount provided
for in the SIAC Schedule of Fees.
15.21 SIAC gets around this problem by allowing the parties to agree, prior to the constitution of
the tribunal, their own method of remuneration for the tribunal.* (In practice, however, this
can be difficult to achieve if attempted after a dispute has already arisen.) Alternatively, if the
parties use the ad valorem method of remuneration, the Registrar may allow an additional fee
over that prescribed in the SLAC Schedule of Fees in exceptional circumstances.*°
15.22 In addition to receiving a fee, arbitrators are entitled to a per diem allowance when attending
hearings and reimbursement of their out-of-pocket expenses.*®
15.23 Where the tribunal has appointed an administrative secretary, the parties are not to bear
any fees for the use of the secretary if the amount in dispute is less than $$15 million at the
time of the request for his or her appointment.?” Nonetheless, if they have consented to the
administrative secretary's appointment, the parties shall pay his or her reasonable expenses
no matter the amount in dispute.?8
15.24 If the amount in dispute is S$15 million or more, the parties may agree that the fees and
reasonable expenses of the administrative secretary be borne by them.» If the parties have so
agreed, the fees and/or reasonable expenses of the administrative secretary shall be invoiced
to and paid directly by the parties (rather than through an advance or deposit collected by
SIAC). In any case, the fees of the administrative secretary shall not exceed $$250 per
hour.
15.25 The fees and expenses of any experts called upon to assist the tribunal (ie tribunal-appointed
experts)*? will be payable by the parties at an amount usually set in consultation with the
parties.

4. Party’s legal and other costs

15.26 The parties are also liable for the cost of the hearing room(s), transcriber, translators, and
other services required during the course of the arbitration. In practice, these services are
usually arranged and paid for by the parties jointly, failing which the onus will fall upon

* SIAC Rules (2016), Rule 34.1. The parties cannot agree a different method of calculating the SLAC
Secretariat's fee.
35 SIAC Rules (2016), Rule 36.1.
36 SIAC Rules (2016), Rule 36.2; see para [15.64].
37 SIAC Practice Note on the Appointment of Administrative Secretaries (2015) para 5.
38 As no administrative secretary may be appointed without the consent of all parties to the arbitration, the
parties cannot in any circumstances be forced against their will to pay any costs in relation to the appointment
of a tribunal secretary: SLAC Practice Note on the Appointment of Administrative Secretaries (2015) para 3.
39 SIAC Practice Note on the Appointment of Administrative Secretaries (2015) para 6.
40 SIAC Practice Note on the Appointment of Administrative Secretaries (2015) para 7.
“1 SIAC Practice Note on the Appointment of Administrative Secretaries (2015) para 6.
“ For a discussion on the use of tribunal-appointed experts pursuant to Rule 26, see Ch 9.

278
 C. SIAC Arbitration Costs Compared to those of the ICC and the HKIAC

the claimant to ensure the necessary services are in place. The tribunal has the authority to
apportion the costs between the parties at its discretion,4? which is usually exercised after the
costs have been incurred.
In addition to its own legal costs, a party to a SIAC arbitration may be held liable for the 15.27
costs of its opponent.“

C. SIAC Arbitration Costs Compared to those of

the ICC and the HKIAC
Table 15.1 compares the maximum filing, administration, and tribunal fees payable in cases 15.28
referred to SIAC, the ICC, and the HKIAC, using five different sample claim amounts. The
SIAC fees and HKIAC fees, which are respectively set in Singapore and Hong Kong dollars,
have been converted to US dollars at the prevailing exchange rate.‘
As Table 15.1 demonstrates, the maximum filing fees, administration fees, and tribunal 15.29
fees for SLAC arbitrations for five sample claim amounts are substantially lower than those
charged by the ICC. The margin of difference has increased since the first edition of this book
largely due to the increased strength of the US dollar (in which the ICC fees are calculated)
compared to the Singapore dollar (in which currency the SIAC fees are calculated).*® As
already noted, in the absence of an agreement of the parties, HKIAC arbitrators are paid an
hourly rate. Should the parties to a HKIAC arbitration, however, agree to opt into the pay-
ment of arbitrator fees based on the HKIAC Schedule of Fees, those fees would be marginally
less than those charged by SIAC for its arbitrators (with the exception of the tribunal fees for
a US$10 billion claim). Other points to note are as follows:
* Each of the three arbitral institutions requires the claimant to pay a filing fee when it com-
mences an arbitration. The SIAC filing fee of S$$2,000 (ie US$1,481 based on the exchange
rate prevailing at the time of writing) is cheaper than the ICC filing fee of US$5,000 but
more expensive than the HKIAC filing fee of HK$8,000 (US$1,022) when both are con-
verted to US dollars. In SIAC arbitrations, an additional filing fee of S$$2,000 must be paid
by the respondent should it raise a counterclaim.” While that is not the case in an ICC
or HKIAC arbitration, the ICC Rules (2017) do require a filing fee to be paid if a party
requests that an additional party be joined to the arbitration.”
* The three institutions charge a fee to cover the cost of administering an arbitration. All
three calculate their administration fees on an ad valorem basis (ie with reference to the

43 SIAC Rules (2016), Rule 37.

“4 SIAC Rules (2016), Rule 37.
45 SIAC’s filing, administration, and tribunal fees have been converted to US dollars based on the exchange
rate of US$1: $$1.35 as at 6 September 2017. HKIAC’s filing, administration, and tribunal fees have been
converted to US dollars based on the exchange rate of US$1: HK$7.83 as at 6 September 2017. (At the
time of the preparation of the equivalent table in the first edition on 9 July 2013, the exchange rates were
US$1: S$1.28: HK$7.76.)
46 The ICC has also slightly increased some of its fees since the first edition of the book. Most notably, the
filing fee has been increased from US$3,000 to US$5,000 whereas the SIAC filing fee has remained constant at
$$2,000 (ieUS$1,481 ene I nt aeae eae at the time of writing).
47 3
“ a ates ii cidAtp11]—Arbitration Costs and Fees, Art 1.1. Conversely, in SIAC arbi-
tration there isnoadditional filing fee payable for the joinder ofa party.
279
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 C. SIAC Arbitration Costs Compared to those of the ICC and the HKIA(

amount in dispute). Based on the five sample amounts considered in Table 15.1, SLAC
administration fees are slightly more expensive than those payable under the HKIAC
Rules (2013). The services that the institutions provide, however, are not identical. In
particular, the HKIAC does not scrutinize draft awards, whereas both the ICC and SIAC
expend considerable resources seeking to ensure that draft awards are enforceable.
The SIAC administration fee is substantially less expensive than those payable under the
ICC Rules (2017) for all claim amounts. For example, the SIAC administration fee for a
claim of US$10 million is $$42,125 (ie US$31,204 based on the prevailing exchange rate at
the time of writing), whereas the ICC’s fee for the same size of claim is nearly double that
amount at US$57,515.
* The maximum administration fee charged by SIAC is $$95,000 (ie US$70,370) for claim
amounts greater than $$100,000,000 (ie US$74 million). In contrast, the ICC’s admin-
istration fees peak at more than double this amount at US$150,000 for claim amounts
greater than US$500 million.
SIAC arbitrator fees are less expensive than ICC tribunal fees (both being calculated on an
ad valorem basis) for all five sample claim amounts. For example, a claim of US$1 billion
in a SIAC arbitration will attract a maximum fee of $$2,835,040 (ie US$2,10,000) for a
three-person tribunal, whereas a three-person tribunal in an ICC arbitration for the same
amount will be paid a maximum of US$2,349,900, representing a 12 per cent increase.
SIAC tribunal fees, however, are marginally higher than HKIAC tribunal fees for all claim
amounts considered in Table 15.1 based on prevailing exchange rates at the time of writing,
with the exception of a US$10 billion claim.
SIAC tribunal fees top out at $$2 million (around US$1.5 million) per arbitrator for claim
amounts of $$500 million (US$370 million) or greater.4? ICC tribunal fees, in contrast,
are not capped. By way of illustration, an ICC arbitrator will receive, in theory, a max-
imum fee of around US$4.4 million for a US$10 billion case, whereas a SIAC arbitrator is
entitled to a maximum fee of $$2 million (ie approximately US$1.5 million based on pre-
vailing exchange rates) for the same value of claim.*° For such high value claims, however,
the parties to a SIAC arbitration can consider agreeing an alternative method of remuner-
ation, such as an agreed hourly rate.>' Parties to an ICC arbitration cannot do so.
Each of SIAC, the ICC, and the HKIAC determine the maximum fees payable to a
three-person tribunal by tripling a sole arbitrator's maximum remuneration for the same
amount in dispute. The presiding arbitrator, however, will typically receive 40 per cent of
the overall tribunal fee, with the two co-arbitrators each receiving 30 per cent, reflecting
the presumption that a presiding arbitrator will be required to commit more time to a
case.°3

49 HKIAC tribunal fees are capped at the slightly higher figure of HK$12.5 million (ie around US$1.6 mil-
lion at prevailing exchange rates) for claim amounts greater than HK$4 billion (ie US$510 million).
50 A HKIAC arbitrator is entitled to a maximum fee of around US$1.6 million (HK$12.5 million) for the
same value of claim if the parties have opted into the calculation of the arbitrators’ fees based on the HKIAC
Schedule of Fees.
51 SIAC Rules (2016), SIAC Rule 34.1. As already noted, an agreed hourly rate is the default method of
determining arbitrator fees in HKIAC arbitration: HKIAC Rules (2013), Art 10.1.
52 ICC Rules (2017), Appendix III, Art 2(4).
53 Thou gh inthe SIAC Rules (2016) or a Practice Note, this isSIAC’s policy with regard
not codified tothe
allocation of tribunal fees. The ICC, in contrast, will allocate 40to 50 per cent of the fees tothe president of the
tribuna l,25 to30per cent totheco-arbitrators: NotetoParties on the Conduct oftheArbitration under
and
the ICC Rules of Arbitration (2017) para 106.
281
 Costs (SIAC Rules 34 to 37)
scans siete cease
¢ In practice, none of the institutions tend to pay arbitrators the maximum fees payable
under their respective schedules of fees. The fee actually paid to an arbitrator will depend
on the complexity of the case, its duration, and the extent to which the arbitration was
conducted diligently and efficiently. In particular, a SIAC tribunal will generally receive 75
to 80 per cent of the maximum fees payable under the SIAC Schedule of Fees.™ If a case is
terminated, withdrawn, or settled, the SIAC Registrar will take into account the stage of
the proceedings at which the arbitration was ended and the amount of work done or time
spent by the tribunal on the matter in order to determine an appropriate fee.*°

D. Rule 34—Fees and Deposits

— . Rule 34.1

The Tribunal’s fees and SIAC’s fees shall be ascertained in accordance with the Schedule of Fees
in force at the time of commencement of the arbitration. The parties may agree to alternative
methods of determining the Tribunal’s fees prior to the constitution of the Tribunal.
15.30 As already explained, the tribunal’s fees and those of the SIAC Secretariat for monetary
claims are set with reference to the SIAC Schedule of Fees in force at the time of the com-
mencement of the arbitration.5* For non-monetary claims, both sets of fees are fixed at the
discretion of the Registrar.*”
15.31 The parties have the right to agree an alternative method for calculating the tribunal’s fees,
such as agreeing to pay the arbitrators a fixed hourly rate. An alternative method of calculat-
ing an arbitrator’s remuneration may be appropriate in order to attract the right candidates
to serve on the tribunal in a particular case or where the amount in dispute is so high that
paying the arbitrators on an ad valorem basis may be inappropriate.
15.32 The parties have no discretion in relation to the SIAC Secretariat’s fee, which is fixed by
the Registrar. In the vast majority of cases, the Registrar fixes the administration fee at an
amount lower than that prescribed by the SIAC Schedule of Fees. SLAC will only charge the
maximum fee if the fee cap is particularly low or if the SLAC Secretariat is required to devote
a significant amount of time to a case.

2. Rule 34.2

The Registrar shall fix the amount of deposits payable towards the costs of the arbitration.
Unless the Registrar directs otherwise, 50% of such deposits shall be payable by the Claimant
and the remaining 50% of such deposits shall be payable by the Respondent. The Registrar
may fix separate deposits on costs for claims and counterclaims, respectively.

*4 Similarly, the ICC’s starting point for calculating an arbitrator's fee is the ‘average’ amount, being the
midpoint between the minimum and maximum fee payable under the ICC's Scale of Administrative Expenses
and Arbitrator’s Fees. If the parties toa HKIAC arbitration have agreed to opt into the payment of the arbitra-
tors based on the HKIAC Schedule of Fees, the HKIAC will take into account various factors when fixing the
tribunal's fees, including the amount in dispute, the complexity of the matter, and the work done by the tribu-
erie osRules (2013), Art 10.3(a).
SIAC Practice Note for Administered Cases (2 Jan 2014) para 15. See F of this chapter.
56 SIAC Rules (2016), Rule 36.1. ae ; = 4
57 SIAC Rules (2016), Rule 34.3.

282
 D. Rule 34—Fees and Deposits

Rule 34.2 provides that the Registrar shall fix the deposits payable towards the SIAC costs of 15.33
the arbitration (which is sometimes referred to as the advance on costs). The purpose of the
advance is to ensure that the SIAC Secretariat and the tribunal will be paid for their work.
The advance is fixed by the Registrar with reference to the total expected SIAC costs of the
arbitration, which, in turn, are set primarily with reference to the SIAC Schedule of Fees.58
The amounts set out in the SIAC Schedule of Fees do not include expenses and any applic-
able taxes. Thus, SIAC will typically fix the advance on costs at an amount 15 or 20 per cent
higher than chat prescribed in the SIAC Schedule of Fees (depending on whether the case is
before a sole arbitrator or a three-person tribunal).5? For non-monetary claims, the advance
is fixed by the Registrar with reference to the estimated SIAC costs of the arbitration.
The advance is usually paid in three or more tranches over the course of an arbitration. The 15.34
first tranche is required to be paid shortly after the commencement of the arbitration,®!
usually two to three weeks after the filing of the Notice of Arbitration. The second tranche
is usually required to be paid one month after the constitution of the tribunal has been final-
ized and the third is usually due two months before the final hearing. SIAC’s policy is to
request 40 per cent of the overall advance on costs in each of the first and second tranches,
and the remaining 20 per cent in the third tranche. The Registrar may from time to time
request further advances from the parties.©
SIAC holds the deposits paid by the parties for its own and the tribunal’s benefit and retains 15.35
any interest which may accrue thereon.™
The usual rule is that the parties share the burden of any deposits required to be paid equally 15.36
without prejudice to the tribunal’s power to determine subsequently the final allocation of
the SIAC costs of the arbitration pursuant to Rule 35.1. There may be times, however,
where at the outset of an arbitration it is evident that an equal split of the deposits on costs
is not appropriate.
The last sentence of Rule 34.2 was added in April 2013 to illustrate one such instance.® If a 15.37
counterclaim is filed, the Registrar may set an advance payable by the claimant with reference
to the value of its claim and a separate advance payable by the respondent calculated with
reference to the value of its counterclaim.® Failure to pay the separate advances on costs can

58 See para [15.46]. By way of illustration, the SCC, which also uses the ad valorem method for calculating
fees, sets the advance on costs with reference to (1) the expected fees of the arbitral tribunal; (2) its administra-
tive fee; (3) the expected expenses of the arbitral tribunal and the SCC; (4) the amount in dispute; (5) the com-
plexity of the dispute; (6) the type of dispute; (7) the number of parties; (8) whether the parties have presented
counterclaims or set-off defences; (9) whether any jurisdictional objection is raised; (10) whether multiple
languages need to be used in the procedure; , and (11) the number of arbitrators: C Salinas Quero, ‘Briefly
on Advance on Costs under the SCC Rules’, 1 July 2013, available at <http://www.sccinstitute.com/media/
48877/scc_advance-on-costs-estimate.pdf> (accessed 20 March 2017).
59 SIAC, ‘Estimate Your Fees’, available at <http://www.siac.org.sg/component/siaccalculator/?Itemid=448>
(accessed 9 April 2017).
60 SIAC Rules (2016), Rule 34.3.
61 SIAC Practice Note forAdministered Cases (2 January 2014) para 21.
62 The Registrar will consider reasoned requests for extensions of time in the payment of the requested
advances on costs.
63 SIAC Practice Note forAdministered Cases (2 January 2014) para 22; SIAC Rules (2016), Rule 34.4.
64 SIAC Practice Note forAdministered Cases (2 January 2014) para 24; SIAC Rules (2016), Rule 34.8.
65 SIAC Practice Note for Administered Cases (2 January 2014) para 23.
66 SIAC Rules (2013), Rule 30.2.
Cases (2 January 2014) para 23.
67 SIAC Practice Note forAdministered
283
 Costs (SIAC Rules 34 to 37)

lead to (a) suspension of the proceedings; (b) the claim or counterclaim being dismissed; or
(c) where a party (usually a respondent) fails to pay its share of a deposit, the tribunal can
issue an order or award requiring that party to reimburse any other party which paid the
deposit on its behalf.®

3. Rule 34.3
Where the amount of the claim or the counterclaim is not quantifiable at the time payment is
due, a provisional estimate of the costs of the arbitration shall be made by the Registrar. Such
estimate may be based on the nature of the controversy and the circumstances of the case. This
estimate may be adjusted in light of such information as may subsequently become available.
15.38 In circumstances where a claimant has not quantified its claims or seeks only non-monetary
relief, the Registrar may fix a provisional estimate of the SIAC costs of arbitration based on
the information available at the time, including the level of complexity in the claims pre-
sented and the value of the contract and/or any shares which are in dispute.
15.39 The provisional estimate may be adjusted at a later date in accordance with any relevant
developments such as the qualification of the claims or counterclaims, the addition of a new
party or the raising of new claims or counterclaims.

4. Rule 34.4

The Registrar may from time to time direct parties to make further deposits towards the costs
of the arbitration.
15.40 As already noted, the SIAC Registrar usually requests the parties to pay the deposits on
costs in tranches. The Registrar may seek additional deposits if the case proves to be more
complicated than initially anticipated.® (The seeking of such additional fees does not neces-
sarily mean the arbitrators or SIAC will receive increased remuneration as it is possible the
additional deposits will be refunded to the parties depending on the Registrar’s final deter-
mination of the SIAC costs of the arbitration.)

5. Rule 34.5

Parties are jointly and severally liable for the costs of the arbitration. Any party is free to pay
the whole of the deposits towards the costs of the arbitration should the other party fail to pay
its share.
15.41 The parties are jointly and severally liable for the SIAC costs of the arbitration. That not-
withstanding, a party may need to pay the entire SIAC costs of the arbitration alone either
because it is ordered to do so by the tribunal (usually after the determination of one or more
issues against it) or because the other party fails to pay its allocated share of the expected
SIAC costs of the arbitration and full payment is necessary to maintain the arbitration.
15.42 In the latter situation, the non-defaulting party may request the tribunal to issue an order or
award requiring the defaulting party to reimburse it for having paid its share of the deposits
on the costs of arbitration.”°
SSE peereneeseneeeeee
68 SIAC Rules (2016), Rules 27(g) and 34.6.
6 Rule 34.4 is reinforced by Rule 36.1, which allows the Registrar to fix the fees of the tribunal at an amount
above that which is indicated in the SLAC Schedule of Fees in ‘exceptional circumstances’,
7° SIAC Rules (2016), Rule 27(g).

284
 D. Rule 34—Fees and Deposits

6. Rule 34.6

Ifaparty fails to pay the deposits directed by the Registrar either wholly or in part:
a. the Tribunal may suspend its work and the Registrar may suspend SIAC’s administration
of the arbitration, in whole or in part; and
b. the Registrar may, after consultation with the Tribunal (if constituted) and after inform-
ing the parties, set a time limit on the expiry of which the relevant claims or counterclaims
shall be considered as withdrawn without prejudice to the party reintroducing the same
claims or counterclaims in another proceeding.
If a party fails to pay its share of a requested deposit on costs and that share is consequently 15.43
paid by another party, the tribunal can issue an order or award under Rule 27(g) requiring
the defaulting party to reimburse the other party for the unpaid deposit on SIAC costs. But
what happens if a claimant does not pay its share of the deposit on costs or fails to pay the
respondent's share after the respondent has itself defaulted on its payments? In those circum-
stances, Rule 34.6 empowers the tribunal to suspend its work and the Registrar may suspend
its administration of the arbitration in whole or in part. The Registrar may also, after consult-
ation with the Tribunal, set a deadline for payment of the unpaid deposit. If this deadline
(which can be extended)” is not met, the relevant claim or counterclaim can be deemed
withdrawn without prejudice. The affected party may initiate new proceedings for the same
claim or counterclaim at a later date. In this regard, the Singapore High Court has held that
costs arising out of an arbitration which have been forfeited following the withdrawal of a
party's claim due to its failure to pay its share of an advance on costs may be recoverable in a
second arbitration.’
Notably, Rule 34.6 only allows the Registrar to dismiss a claim or counterclaim, but not a 15.44
defence. The failure of a respondent (or counter-respondent) to pay a requested deposit on
costs will not prevent that party from defending itself. In those circumstances, as already
noted, the claimant may be requested pursuant to Rule 34.5 to pay the Respondent's share
of the deposit on costs so that SIAC and the tribunal will have sufficient funds in order that
the arbitration may continue. In effect, the claimant may have to pay the Respondent's share
of the deposit on costs in order to have its claims ruled upon by the tribunal. If it fails to
do so, the proceedings may be suspended by the tribunal or Registrar. For example, in one
case under the 2010 SIAC Rules the respondent continued to participate in the arbitration
proceedings despite having ignored repeated requests for payment of the advance on costs.
Eventually, the claimant was required to pay the respondent's share of the advance on costs in
order to maintain the arbitration. The claimant then applied for an award for unpaid costs,
which was (at that time) rejected. In the final award, the respondent was ordered to reim-
burse the claimant for the entire amount of the SIAC costs of the arbitration.
In another case under the 2016 SIAC Rules, the claimant failed to pay the respondent's share 15.45
of the deposit on costs despite repeated reminders from SIAC. The SIAC Registrar ultim-
ately declared that the claims were deemed withdrawn and the proceedings terminated.
This outcome can frustrate claimants. Rather than being required to pay the respondent's
share of the advance on costs, claimants sometimes contend that they should be entitled to a

7) SIAC Rules (2016), Rule 2.6.

7 sas Ghppuie-decunmaih apentineenemcafvie Ldemie RepabitsofPubiney[2004] 3 SLR(R) 184
(Singapore High Court) paras 19-20.

285
 Costs (SIAC Rules 34 to 37)

summary judgment in their favour ifarespondent fails to comply with its procedural obli-
gations, as can be expected in domestic litigation. Summary judgments, however, have
traditionally not been available in international arbitration and the new early dismissal pro-
visions in Rule 29 do not expressly apply to a situation where a respondent refuses to partici-
pate in an arbitration or pay its share of the deposit on costs.”

7. Rule 34.7

In all cases, the costs of the arbitration shall be finally determined by the Registrar at the con-
clusion of the proceedings. If the claim and/or counterclaim is not quantified, the Registrar
shall finally determine the costs of the arbitration, as set out in Rule 35, in his discretion.
The Registrar shall have regard to all the circumstances of the case, including the stage of
proceedings at which the arbitration concluded. In the event that the costs of the arbitra-
tion determined are less than the deposits made, there shall be a refund in such proportions
as the parties may agree, or failing an agreement, in the same proportions as the deposits
were made.
15.46 The Registrar shall determine the SIAC costs of arbitration, as defined in Rule 35.2, at the
conclusion of the proceedings in accordance with the SIAC Schedule of Fees, assuming that
the claim or counterclaim was quantified during the arbitration. If the claim or counter-
claim was not quantified (and thus the ad valorem Schedule of Fees cannot be applied), the
Registrar shall fix the SIAC costs of the arbitration at his or her discretion.”
15.47 Rule 34.7 requires the Registrar to return any unused portion of the deposits on costs to
the parties. The parties are free to agree on the proportion of the refund that each party will
receive. In the absence of an agreement between the parties, the refund will be distributed in
the same proportion as the parties paid the deposits on costs.
15.48 The Registrar will determine the SIAC costs of the arbitration (and thus whether a refund is
due) in the light of all the circumstances of the case and, in particular, the stage at which the
arbitration ended. The Registrar will also take into account the work done and the time spent
by the arbitrator(s) on the matter.’5 The further a case has progressed before it is terminated,
the less likely it is that there will be a refund.

8. Rule 34.8

All deposits towards the costs of the arbitration shall be made to and held by SIAC. Any inter-
est which may accrue on such deposits shall be retained by SIAC.

73 SIAC Rules (2016), Rule 29.3 allows a tribunal to dismiss a defence that is manifestly without legal merit
or outside the jurisdiction of the tribunal. It does not expressly allow a tribunal to rule in a claimant's favour
simply because the respondent has not filed a defence, failed to pay a requested deposit on costs, or is not co-
operating with the tribunal. Nonetheless, an interpretation of Rule 29.1 which extended it to situations where
the respondent failed to file a defence would have the attraction of encouraging respondents (who have been
properly served with notice of the proceedings) to participate actively in the arbitration. One of the challenges
facing arbitration, particularly in the resolution of lower amount disputes, is that respondents all too often
ignore the proceedings, thereby forcing the claimant to bear the financial burden of the arbitration on its own.
74 SIAC Rules (2016), Rule 34.7; SIAC Practice Note for Administered Cases (2 January 2014) para 15.
Rule 34.7 was modified in 2016 to make clear that the Registrar's power to set the SIAC costs of arbitration
applies in all circumstances, not just when an arbitration is concluded without a hearing which is the only scen-
ario referenced in the equivalent provision of the 2013 SIAC Rules, namely Rule 30.7.
7° SIAC Practice Note for Administered Cases (2 January 2014) para 15.

286
 E. Rule 35—SIAC Costs of the Arbitration

The parties pay the deposits fixed by the Registrar to SIAC, which will hold them
in order to 15.49
cover the Secretariat's administration fees and expenses and those ofthe tribunal.”6
SIAC will
retain any interest which accrues on the deposits.

9. Rule 34.9

In exceptional circumstances, the Registrar may direct the parties to pay an additional
fee, in addition to that prescribed in the applicable Schedule of Fees, as part of SLAC’s
administration fees.
Rule 34.4 allows the Registrar to seek further deposits from the parties to cover the expected 15.50
costs of the arbitration. Rule 34.9 was added to the SIAC Rules in 2016 to allow SIAC to
allocate some or all of any additional deposits to cover SIAC’s administration fees beyond
those stipulated in the Schedule of Fees in ‘exceptional circumstances’. It is yet to be applied
at the time of writing.

E. Rule 35—SIAC Costs of the Arbitration

1. Rule 35.1

Unless otherwise agreed by the parties, the Tribunal shall specify in the Award the total amount
of the costs of the arbitration. Unless otherwise agreed by the parties, the Tribunal shall deter-
mine in the Award the apportionment of the costs of the arbitration among the parties.

2. Rule 35.2

‘The term ‘costs of the arbitration’ includes:

a. the Tribunal’s fees and expenses and the Emergency Arbitrator’s fees and expenses, where
applicable;
b. SIAC’s administration fees and expenses; and
c. the costs of any expert appointed by the Tribunal and of any other assistance reasonably
required by the Tribunal.
As explained in paragraph [15.11], the expression ‘costs of the arbitration’ used in Rules 35.1 15.51
and 35.2 refers to the costs of the SIAC Secretariat and the tribunal, and for that reason is
referred to in this chapter as the ‘SIAC costs of the arbitration’. It does not encompass the
parties’ legal and other costs, which are addressed in Rule 37, and can account for a signifi-
cant proportion of the overall total costs of an arbitration.” J

76 SIAC Practice Note forAdministered Cases (2 January 2014) para 30.

77 Arbitral institutions have sought to respond to concerns about the overall costs of arbitration. The
ICC, for instance, has reported that in a sample of 221 ICC cases in 2012, the parties’ legal and other costs
(including those relating to expert evidence) constituted 83 per cent of the average total costs of an arbitra-
tion, with a further 15 per cent attributable to arbitrators’ fees and the final 2 per cent relating to the ICC .
administrative expenses. ICC Commission Report, ‘Decisions on Costs in International Arbitration’, ICC
Dispute Resolution Bulletin, 2015, Issue 2, 3. Similarly, it has been reported that 88 per cent of the average
total costs ofanSCC investor-state case is forlegal representation with the remaining 12 percentattributable
E Salinas Quero, ‘Investor-state disputes atthe SCC’, 7 (available at
and secretariat fees: Celeste
to tribunal
<http://www.sccinstitute.com>, accessed 20 March 2017). With that said, in practice, administration and
has not
arbitrator costs can be of a similar magnitude to party legal costs for some amounts in dispute. SIAC
reported asimilar study.

287
 Costs (SIAC Rules 34 to 37)
a cE

15.52 The tribunal shall specify in its award the SIAC costs of the arbitration and apportion those costs
between the parties unless otherwise agreed by the parties.”* On a strict interpretation of Rule
35.1 (read with the definition of ‘Award’ in Rule 1.3), the tribunal should allocate the costs of
the arbitration in any award, including interim or partial awards. This will not be necessary if the
parties agree, for instance, that the tribunal should only identify and apportion the SIAC costs
of the arbitration in the final award.”
15.53 Neither the SIAC Rules, nor the SIAC Practice Notes, provide guidance on how a tribunal
should apportion costs between the parties. In contrast, the ICC Rules (2017) provide
that a tribunal, when determining the apportionment of costs, may take into account cir-
cumstances that the tribunal considers relevant, including the extent to which each party
conducted the arbitration in an expeditious and cost-effective manner.® The LCIA Rules
(2014) go further and provide that tribunals should follow the ‘general principle that costs
should reflect the parties’ relative success and failure in the award or arbitration or under
different issues, except where it appears to the Arbitral Tribunal that in the circumstances
the application of such a general approach would be inappropriate under the Arbitration
Agreement or otherwise’.8' In other words, unless there are special circumstances, costs
follow the event. SIAC tribunals generally follow this approach.* This is also the method
reportedly preferred by the majority of users of international arbitration,® and is allowed
under Singapore law.®4
15.54 It is open to the parties to agree in their contract whether the SIAC costs of the arbitration
should be borne by the parties equally or with reference to their relative success in the case.

78 In ASG v ASH [2016] SGHC 130, the parties agreed that the arbitrator should make his award on all
presented issues other than the issue of costs which would be addressed separately. The arbitrator, however,
addressed the issue of costs in an apparently final award, having overlooked the parties’ agreement. After being
reminded of the parties’ agreement, the arbitrator invited submissions from the parties on costs and issued a
supplemental costs award. The High Court granted the claimant's request to set aside the supplemental costs
award on the basis that the arbitrator was functus officio on the issue of costs when he addressed that issue in his
final award. It is an open question whether the defendant would have succeeded on an application to set aside
the decision on costs in the final award on the grounds that it was not in accordance with the parties’ agreement
or in breach of its right to be heard.
79 This approach is stated expressly in ICC Rules (2017) Art 37(4) which requires the tribunal to stipulate
costs in the ‘final award’.
80 ICC Rules (2017), Art 38(5).
81 LCIA Rules (2014), Art 28.4.
82 SIAC has advised that costs followed the event in 12 of 15 awards rendered under the SIAC Rules (2010)
which it reviewed for the first edition of this book. In three of the 12 cases, costs were split between the parties
in recognition of the fact that each had prevailed on specific issues. In the three cases in which costs did not
follow the event, the parties had agreed to bear the costs equally as part of a settlement recorded in awards given
by consent. SIAC has confirmed that in recent times SIAC tribunals tend to order that costs follow the event.
83 Queen Mary University of London's School of International Arbitration and White & Case, ‘2012
International Arbitration Survey: Current and Preferred Practices in the Arbitral Process’ (2012) 40 available at
<arbitration.qmul.ac.ukj/docs/164761.pdf> (accessed 30 November 2017).
TAA, s 12(5)(a) empowers a tribunal to award any relief that the Singapore High Court can award in civil
proceedings. One such relief is the awarding of costs. Singapore law provides that: ‘If the Court in the exercise of
its discretion sees fit to make any order as to the costs of or incidental to any proceedings, the Court shall, subject
to this Order, order the costs to follow the event, except when it appears to the Court that in the circumstance
of the case some other order should be made as to the whole or any part of the costs.’ RSC Ord 59 r 3(2). In
contrast, the Philippines does not recognize the principle of ‘costs follow the event’ because of its policy that a
litigant should not be penalized for the exercise of his or her right to litigate. This rule applies to arbitration as
well as litigation in the Philippines: Luzon Hydro Corp v Baybay and Transfield Philippines Inc CA-GR SP No
94318 (Philippines, Manila Court of Appeals), 29 November 2006, paras 36-42.

288
 E Rule 36—Tribunal’s Fees and Expenses

For domestic arbitrations seated in Singapore, however, section 39(2)—(3) of the AA provide
s
that such an agreement will be valid only ifentered into after a dispute has arisen.®

F. Rule 36—Tribunal’s Fees and Expenses

—_. Rule 36.1

The fees of the Tribunal shall be fixed by the Registrar in accordance with the applicable
Schedule of Fees or, if applicable, with the method agreed by the parties pursuant to Rule
34.1, and the stage of the proceedings at which the arbitration concluded. In exceptional
circumstances, the Registrar may determine that an additional fee over that prescribed in the
applicable Schedule of Fees shall be paid.

Subject to the parties’ ability to agree to an alternative method of remuneration pursu- 15.55
ant to Rule 34.1, Rule 36.1 provides that the Registrar determines the tribunal’s fees
on an 4d valorem basis with reference to the aggregate value of the claims and counter-
claims (when quantified) and the Schedule of Fees in force at the commencement of the
arbitration.
Tribunal fees will normally be set as a percentage of the fee cap that correlates to the amount 15.56
in dispute. As already noted, a SIAC tribunal will generally receive 75 to 80 per cent of the
maximum tribunal fee payable under the SIAC Schedule of Fees. The Registrar, however,
may fix a higher or lower amount for tribunal fees after having considered the following
factors:
(a) the stage of the proceedings at which the arbitration ended;
(b) the complexity of the matter;
(c) whether substantial questions of law or fact were determined;
(d) the volume of documents involved;
(e) the number of witnesses examined;
(f) the length of any hearings conducted; and
(g) the time spent by the arbitrator(s) on the arbitration.

Where a claimant pursues only non-monetary relief, the Registrar will have regard to the 15.57
type of relief claimed and the complexity of the case in order to determine the tribunal’s fees.
SIAC’s administration fee will also typically be fixed as a percentage of the corresponding fee 15.58
cap in the same proportion to that of the tribunal’s fees. 3
As illustrated in Table 15.1, the maximum fee payable to a three-person tribunal is triple that 15.59
which is payable toa sole arbitrator. The presiding arbitrator will generally receive 40 per cent
of the tribunal’s fees while the co-arbitrators each receive 30 per cent,** under the assumption
that the presiding arbitrator carries a heavier workload.
The Registrar may allow an additional arbitrator's fee over that prescribed in the SIAC 15.60
Schedule of Fees in ‘exceptional circumstances’. The Registrar determines on a case-by-case

85 Thereis in the IAA, reflecting the fact that Singapore law provides further protec-
Pity stecr tenant in Singapore as compared to international cases.
86 SIAC Practice Note for Administered Cases (2 January 2014) para 15.
289
 Costs (SIAC Rules 34 to 37)
ee ee ee
basis whether there are exceptional circumstances so as to warrant an additional fee.°” SLAC
has advised that in one case the Registrar approved an additional fee as the amount in dis-
pute substantially increased only a few weeks before the final hearing. In another case, where
the arbitrator’s fee cap was very low, the Registrar considered an additional fee was war-
ranted given the complexity of the dispute and because there was substantial correspondence
between acrimonious parties on various procedural and substantive issues.
15.61 The Registrar may make interim payments to an arbitrator ‘in appropriate circumstances
and upon the request of the arbitrator’.8® When assessing the amount of an interim payment
to be made, the Registrar will take into account the tribunal's progress in the arbitration.
The Registrar may pay an arbitrator up to 20 per cent of his or her total expected fees after
the issuance of a substantial order or partial award and up to 50 per cent after completion of
a hearing on the merits.”°
15.62 The Registrar may make interim payments to the tribunal without reference to the parties.”'
Upon a party's request, however, the Registrar will provide a statement of account showing
how much has been paid to the tribunal.%

2. Rule 36.2

The Tribunal’s reasonable out-of-pocket expenses necessarily incurred and other allowances
shall be reimbursed in accordance with the applicable Practice Note.

15.63 Consistent with international practice,9? SIAC arbitrators are entitled to be reimbursed for
their reasonable out-of-pocket expenses necessarily incurred in the performance of their
functions. An arbitrator's expenses are reimbursed at cost upon proof of payment in the form
of receipts or invoices.” In addition, an arbitrator who is obliged to travel outside his or her
place of residence for an arbitration will be reimbursed for a business class airfare,*° and will
receive a per diem allowance of S$1,000 if he or she requires overnight accommodation and
S$400 if he or she does not.% The per diem allowance covers out-of-pocket expenses, includ-
ing hotel accommodation, meals and beverages, laundry, city transport (excluding airport
transfers), telephone, fax, and internet costs, and tips.%

87 The ICC Rules (2017), Art 38(2) contains a similar provision. The ICC Court, however, has historically
been reluctant to derogate from the ICC Scales of Administrative Expenses and Arbitrator’s Fees, and has done
so only on a few occasions: Y Derains and E Schwartz, A Guide to the ICC Rules ofArbitration (2nd edn, Kluwer
Law International 2005) 367; and H Verbist, E Schafer et al, JCC Arbitration in Practice (2nd edn, Kluwer Law
International 2015) 214.
88 SIAC Practice Note for Administered Cases (2 January 2014) para 25. Whereas the SIAC Practice Note
for Administered Cases Fees (1 July 2007) allowed interim payments to be made only in ‘exceptional circum-
stances’, they may now be made under ‘appropriate circumstances’.
89 SIAC Practice Note for Administered Cases (2 January 2014) para 26.
%° SIAC Practice Note for Administered Cases (2 January 2014) paras 26-27. The aggregate amount of
interim fees paid to an arbitrator may not exceed 50 per cent of his or her total expected fees: SLAC Practice
Note for Administered (2 January 2014) para 28.
91 SIAC Practice Note for Administered Cases (2 January 2014) para 29.
% SIAC Practice Note for Administered Cases (2 January 2014) para 29.
%3 ICC, ‘Note on personal and arbitral tribunal expenses’ (1 September 2013); LCIA Rules (2014), Schedule
of Arbitration Costs (1 October 2014), Art 2(iv); HKIAC Rules (2013), Sch 2, Art 3 and Sch 3, Art 3.
% SIAC Practice Note for Administered Cases (2 January 2014) para 16.
% SIAC Practice Note for Administered Cases (2 January 2014) para 17.
% SIAC Practice Note for Administered Cases (2 January 2014) para 18.
%” SIAC Practice Note for Administered Cases (2 January 2014) para 19.

290
 G. Rule 37—Partys Legal and Other Costs

G. Rule 37—Party’s Legal and Other Costs

1. Rule 37

‘The Tribunal shall have the authority to order in its Award that all or a part ofthe legal or other
costs of a party be paid by another party.

Consistent with Singapore law,%* a SIAC tribunal has the power to order that all or some of 15.64
the legal or other costs of a party should be borne by another party.
When determining whether a party should be ordered to pay another party's costs, a SIAC 15.65
tribunal will take into account its decisions on the issues presented for its determination, as
well as the conduct of the parties in the arbitration. The conduct considered includes: any
non-compliance with the tribunal’s directions; any obstructive conduct causing delay;
whether claims were grossly exaggerated; and whether a party made excessive submissions or
produced excessive evidence on irrelevant or insignificant issues.
A tribunal may order aparty to pay another party’s ‘reasonable costs’.' Alternatively, under 15.66
Singapore law, full ‘indemnity costs’ may be ordered to be paid whereby the tribunal resolves
any doubt it may have as to the reasonableness of the winning party's costs in favour of the
winning party.'®'
As noted in paragraph [15.15], ifa tribunal orders a party to pay another party’s costs, but 15.67
fails to quantify those costs, and the parties cannot agree on the amount, the SIAC Registrar
may be asked to assess the winning party’s costs in a process known as the taxation of costs.
Rule 37 allows a tribunal to order a party to pay the legal ‘or other costs’ of another party. 15.68
Similar language in the ICC Rules has been interpreted by at least one arbitral tribunal as
extending to the reimbursement of third party funding costs, which was not disturbed by the
English High Court when the award was challenged.'”

98 See (n 84).
99 M Moser andJChoong (eds), AsiaArbitration Handbook (OUP 2011) para 15.308.
100 In W Company v Dutch Company and Dutch Holding Company [2012] 1 SAA 97 para 98, the tribunal
determined that the winning party was entitled to claim reasonable costs. ‘The tribunal considered such costs
to be those incurred by a party without knowing whether the tribunal would order such expenses to be reim-
bursed. In French Firm v (1) Indian Company and (2) (16) Shareholders ofIndian Company [2012] 1 SAA 1, para
234, the tribunal held that the claimant's relatively higher costs were justified as the claimant had the carriage
of the arbitration and meetings requiring overseas travel were necessary for the effective presentation of its case.
101 RSC Ord 59 r 27(3):
On a taxation on the indemnity basis, all costs shall be allowed except in so far as they are of an
unreasonable amount or have been unreasonably incurred and any doubts which the Registrar may
have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved
in favour of the receiving party; and in these Rules, the term ‘the indemnity basis’, in relation to the
taxation of costs, shall be construed accordingly.
102 Essar Services Limited v Norscot RigManagement Put Limited [2016] EWHC 2361 (Comm)
at (68): ee ie taemanidiy eomanteclrw
of obtaining litigation funding. The expression should not be co some tj
imposed byreasonofwhara courtmightor mightnot bepermitted to order.All chatthisconchusion ena
isthat such litigation funding costs falls within the arbitrator's general costs discretion.’ The case wasperhaps
unusual inthat the English High Court noted at[69] that ‘the arbitrator ruled in detailed and robust terms that
Essar drove Norscot into this expensive litigation because ofits own reprehensi far beyond
conduct going ble

291
 Costs (SIAC Rules 34 to 37)

15.69 It bears noting that the Singapore courts have been reluctant to disturb decisions on costs
taken by tribunals in international arbitrations seated in Singapore. For instance, In VV v
VW the Singapore High Court refused to set aside an award requiring a claimant to pay the
respondent $$2.8 million in costs despite having brought a claim for only $$927,000. The
respondent's relatively high costs were in part caused by its having brought counterclaims
valued at $$20 million.'°? The High Court dismissed the claimant's set-aside application,
holding that the amount of costs awarded by the tribunal to a successful party should not
be considered injurious to the public good regardless of how unreasonable the decision may
appear, as there is no public interest involved in the allocation of the costs of an arbitration.‘
15.70 The Singapore courts have shown less restraint when supervising arbitrations governed by
the AA. This reflects the judiciary’s greater interest in ensuring that fees and costs of arbitra-
tors and counsel in domestic arbitrations are kept at an appropriate level.’

i a
technical breaches of contract, in order to vindicate its tight’, The arbitrator had also determined
that Essar’s
conduct warranted its having to pay ‘indemnity costs’, which are discussed in n (103).
103 VV and anor v VW [2008] 2 SLR(R) 929 (Singapore High Court), the parties’ names
redacted
themines cea = the confidential nature tebe ngs. Tins a
v n 103). For a discussion of the Singapore High Court's ruling that thecountercla
amid ims
in that
ee despite falling outside the terms of the cimiin agreement, seeCh 10
paras (10. 6).
bre ThoHi; LaiB
HighCoppeaee John v Teo Hee LaiBuilding Constructions PteLtdandors[2010] 2 SLR 625 (Singapore
105 Ti

292
 16
MISCELLANEOUS PROVISIONS
(SIAC RULES 38 TO 41)

A. Rule 38—Exclusion of Liability 16.02 4. Rule 39.3 16.35

1. Exclusion ofliability under 5. Rule 39.4 16.39
Singapore law 16.04 C. Rule 40—Decisions of the President,
2. Rule 38.1 16.07 the Court, and the Registrar 16.40
3. Rule 38.2 16.09 1. Rule 40.1 16.41
B. Rule 39—Confidentiality 16.11 2. Rule 40.2 16.46
1. Confidentiality under Singapore law 16.13 D. Rule 41—General Provisions 16.48
2. Confidentiality under the SIAC 1. Rule41.1 16.49
Rules: Rule 39.1 16.20 5 as 16.52
3. Rule 39.2 16.25 3. Rule 41.3 16.57

The SIAC Rules group together a number of important miscellaneous rules which are ana- 16.01
lysed in this chapter. They cover the immunity of SIAC and its arbitrators (Rule 38), con-
fidentiality (Rule 39), the conclusive nature of decisions made by SIAC officers (Rule 40),
waiver (Rule 41.1), the means by which gaps in the rules are filled (Rule 41.2), and the status
of translations of the SIAC Rules (Rule 41.3).

A. Rule 38—Exclusion of Liability

Consistent with standard practice in international arbitration,’ both Singapore law and the SIAC 16.02
Rules exclude liability for the acts or omissions of those administering and deciding arbitrations.
There are sound policy reasons for doing so. First, unlimited litigation against arbitrators or 16.03
those administering arbitrations could provide a party with an indirect means for challeng-
ing an award which is intended to be final. Second, the exclusion of liability helps to ensure
that arbitrators are willing to accept arbitral appointments.” Third, arbitrators are granted

1 ICC Rules (2017), Art 41; UNCITRAL Arbitration Rules (2010), Art 16; LCIA Rules (2014), Art 31;
SCC Rules (2017), Art 52; HKIAC Rules (2013), Art 43, ACICA Rules (2016), Arts 38.4 and 39; and Swiss
Rules (2012), Art 45. In contrast, the CIETAC Arbitration Rules (2015) do not expressly limit the liability of
CIETAC or its arbitrators. |
2 The 1993 Singapore Law Reform Committee that recommended the adoption ofthe IAA stated that: ‘A
clear policy on this issue is important to encourage and build up a core of competent professionals in dis-
pute resolution. Qualified people would be reluctant totake up these challenges should they beexposed to
such liability.’ Law Reform Committee, Sub-Committee on Review of Arbitration Laws, Report (1993) para
58, available at <http://www.singaporelawwatch.sg/legal/lgl/heml/freeaccess/Ircr/review_of_arbitration_laws.
pdf> (accessed 10 October 2017).
293
 Miscellaneous Provisions (SIAC Rules 38 to 41)
eee ee erent na meee NNN APSR
immunity for public policy reasons in recognition oftheir quasi-judicial function.? Finally, a
degree of immunity is appropriate in order to protect the financial position of SIAC, which
could not afford to defend itself if its decisions were routinely challenged.‘

1. Exclusion of liability under Singapore law

16.04 The immunity of arbitrators and arbitral institutions is one of the areas in which the Singapore
legislature has supplemented the 1985 UNCITRAL Model Law,” which is silent on the issue
of arbitrator immunity. The IAA (and AA) provides that, for arbitrations seated in Singapore,
an arbitrator shall not be liable for ‘negligence in respect of anything done or omitted to be
done in the capacity of arbitrator’ or ‘any mistake in law, fact or procedure made in the course
of arbitral proceedings or in the making of an arbitral award’.®
16.05 While not expressly stated in the IAA, the 1993 Law Reform Committee that recommended
the statute’s adoption advised the Singapore government that ‘such immunity should not
extend to cases where the arbitrator has willfully misconducted himself or inordinately
caused delay in the arbitration’.’
16.06 The limits to the scope of immunity provided under Singapore law are made explicit in the
case of authorities that appoint arbitrators. The IAA and AA provide that an appointing
authority (and its employees and agents) is immune from suit for ‘anything done or omitted
in the discharge or purported discharge of that function unless the act or omission is shown
to have been in bad faith’.®

2. Rule 38.1

Any arbitrator, including any Emergency Arbitrator, any person appointed by the Tribunal,
including any administrative secretary and any expert, the President, members of the Court,
and any directors, officers and employees of SIAC, shall not be liable to any person for any
negligence, act or omission in connection with any arbitration administered by SIAC in
accordance with these Rules.
a. Exclusion ofliability under the SIAC Rules
16.07 Consistent with Singapore law,? Rule 38.1 of the SIAC Rules excludes the liability of SIAC,
its President, Court members, and its directors, officers, and employees (collectively referred

3 Arenson v Casson Beckman Rutley Co (1977) 1 AC 405 (HL) para 436:

Judges, barristers, solicitors, jurors and witnesses also enjoy immunity in respect of anything they
say or do in court during the course of a trial: the law recognises that such an immunity is vital to the
efficient and speedy administration of justice and therefore necessary on grounds of public policy.
The law also accords the same immunity to arbitrators when they are carrying out much the same
functions as judges.
Law Reform Committee, Sub-Committee on Review ofArbitration Laws, Report (1993) (n 2) para 58: “There
is also a public policy argument that it is not desirable for persons acting in a judicial capacity to be liable to suit
as this will only encourage litigation,’
“ R Merkin andJHjalmarsson, Singapore Arbitration Legislation: Annotated (2nd edn, Informa 2016) 110.
5 The 1985 UNCITRAL Model Law is given force in Singapore pursuant to IAA, s 3(1).
6 IAA, s 25; AA, s 20. :
” Law Reform Committee, Sub-Committee on Review of Arbitration Laws, Report (1993) (n 2) para 58.
8 IAA, s 25A(1) and (3); AA, s 59(1) and (3). Singapore law further provides that the appointing authority
shall not be liable for the acts or omissions of the arbitrator, his employees, or agents, by reason only of its having
appointed or nominated the arbitrator: IAA, s 25A(2); AA, s 59(2).
See para [16.04].

294
 A. Rule 38—Exclusion of Liability

to herein as ‘SIAC officers’), as well as arbitrators appointed to SIAC arbitrations and any
persons appointed by the arbitrators, for any negligence, act, or omission in connection
with an arbitration. The SIAC Rules, however, do not expressly protect these persons against
liability for any intentional wrongdoing or acts in bad faith.'°
The scope of the immunity extended to SIAC under Rule 38.1 is broader than that expressly 16.08
prescribed by the LAA and AA in that it exempts SIAC from liability for all its functions
in connection with an arbitration, rather than just those performed in its Capacity as an
appointing authority.

3. Rule 38.2

SIAC, including the President, members of the Court, directors, officers, employees or any
arbitrator, including any Emergency Arbitrator, and any person appointed by the Tribunal,
including any administrative secretary and any expert, shall not be under any obligation to
make any statement in connection with any arbitration administered by SIAC in accordance
with these Rules. No party shall seek to make the President, any member of the Court, dir-
ector, officer, employee of SIAC, or any arbitrator, including any Emergency Arbitrator, and
any person appointed by the Tribunal, including any administrative secretary and any expert,
act as a witness in any legal proceedings in connection with any arbitration administered by
SIAC in accordance with these Rules.

a. SIAC officers and arbitrators cannot be compelled to make a statement or be a witness

While an arbitrator, tribunal-appointed expert, tribunal secretary, or SIAC officer may 16.09
(subject to his or her obligations of confidentiality) choose to give evidence or make a
statement voluntarily in connection with an arbitration conducted under the SIAC Rules,
they are not obliged to do so, and no party shall seek to compel them to make such a
statement.
The significance of Rule 38.2 is most likely to be apparent in the context of enforce- 16.10
ment proceedings (and any actions against SIAC or an arbitrator notwithstanding the
immunity from suit prescribed by Rule 38.1). For instance, the Arbitration and Dispute
Resolution Act of Indonesia provides that an award can be enforced in that country if
the ‘arbitrator(s) or the legal representative of the arbitrator(s)’ submit the award for
registration to the “Clerk of the District Court’."' While Rule 38.2 prohibits a party
from seeking to compel members of the tribunal to make a statement in connection
with an arbitration, a tribunal may voluntarily agree to undertake post-award steps such
as registering its award with the relevant court. Indeed, a tribunal would need to con-
sider any request to do so in the light of its obligation under Rule 41.2 to ‘make every
reasonable effort to ensure ... the enforceability of any award’. Alternatively, a party
can request an arbitral tribunal in advance of its rendering an award to grant a power

10 Other arbitration rules expressly recognize limits to the scope of an arbitrator or institution's immun-
ity: UNCITRAL Arbitration Rules (2010), Art 16 (arbitrator liability is excluded ‘save for intentional wrong-
and the SCC in cases of
an arbitrator
doing’); SCC Rules (2017), Art 52 (allowing claims to be brought against
‘wilful miscondu or gross negligence’);
ct LCIA Rules (2014), Art 31.1 (allowing claims to be brought against
the LCIA, the LCIA Court, the Registrar, a deputy Registrar, anarbitrator, orexpert to the tribunal for anact or
omission constituting ‘conscious and deliberate wrongdoing’); and HKIAC Rules (2013), Art 43.1 (allowing
claims to be brought against HKIAC or anarbitrator for acts done or omitted ‘dishonestly’).
1) Arbiand trat ionAct, Law No 30 of 1999, Art59(1) (enforcement of domestic arbi-
Dispute Resolution
tration awards) and Art 67(1) (enforcement of international arbitration awards).

295
 Miscellaneous Provisions (SIAC Rules 38 to 41)
n n n
of attorney to a legal representative to register the award on the tribunal’s behalf, the
efficacy of which would need to be determined in accordance with the law ofthe place
of enforcement.

B. Rule 39—Confidentiality
16.11 Confidentiality is often cited as one of the main advantages of arbitration over litigation."
That notwithstanding, it should not be assumed that an arbitration is confidential. The
extent to which it is will depend on the /ex arbitri and the terms of the parties agreément,
including their choice of arbitral rules. For arbitrations seated in Singapore and/or governed
by the SIAC Rules, it is clear that both the tribunal and the parties have an obligation to keep
the proceedings confidential subject to certain exceptions.
16.12 In this chapter, the duty of confidentiality imposed by Singapore law in the context of arbi-
tration and its exceptions are first considered followed by an analysis of the confidentiality
requirements prescribed by the SIAC Rules.

1. Confidentiality under Singapore law

a. The duty ofconfidentiality
16.13 Neither the IAA nor the AA requires that an arbitration in Singapore be kept confidential.
The Singapore common law, however, like the English cases on which it is based, recognizes
an implied duty of confidentiality arising out of the nature of arbitration itself. In the words
of Justice Chan Seng Onn in the Singapore High Court case of AAY and others v AAZ, with
Singapore as the seat of arbitration, ‘confidentiality will apply as a substantive rule of arbitra-
tion law, not through the IAA or the AA, but from the common law’."
16.14 The English Court of Appeal in the case of John Forster Emmott v Michael Wilson & Partners
Ltd described the nature of the implied duty of confidentiality thus:
... there is ... an implied obligation (arising out of the nature of arbitration itself) on both
parties not to disclose or use for any other purpose any documents prepared for and used in
the arbitration, or disclosed or produced in the course of the arbitration, or transcripts or notes
of the evidence in the arbitration or the award, and not to disclose in any other way what evi-
dence has been given by any witness in the arbitration, save with the consent of the other party,
or pursuant to an order or leave of the court.'4
16.15 In contrast to the position under English and Singapore law, in the landmark decision of Esso
v Plowman the Australian High Court rejected the argument that arbitration is inherently
confidential. This was in part due to the Australian High Court’s concern that any such obli-
gation of confidentiality can be easily undermined by applications made in open court by a
party seeking interim relief or the setting aside of an award."5

"2 Queen Mary University of London's School of International Arbitration and White & Case, ‘2015
International Arbitration Survey: Improvements and Innovations in International Arbitration’ (2015) 6, avail-
able at <http://www.arbitration.qmul.ac.uk/docs/164761.pdf> (accessed 23 January 2017),
'3 AAY and ors vAAZ [2011] 1 SLR 1093 (Singapore High Court) para 55.
"4 John Forster Emmott v Michael Wilson & Partners Ltd (2008) 2 All ER (Comm) 193 (CA) para 81, cited
with approval by the Singapore High Court in AAY and ors vAAZ (n 13) para 33.
; - evn 4989Resources Ltd vPlowman [1995] 183 CLR 10 (High Court of Australia) para 31, perChief
ustice Mason.

296
 B. Rule 32—Confidentiality

Singapore law solves that problem through sections 22 to 23 of the IAA and sections 56 to 16.16
57 of the AA, which provide that:'®

(a) either party may request that court proceedings under the IAA or the AA be conducted
other than in open court (ie the proceedings can be closed to the public);
(b information on Singapore court proceedings under the IAA or the AA may only be
~~"

published if all parties agree or the court is satisfied that publication will not reveal any
information the parties reasonably wish to remain confidential, including the identity
of the parties; and
(c) though the court may publish a decision in proceedings under the IAA or AA which it
considers to be of ‘major legal interest’, it shall redact any matter, including the names of
the parties, which a party reasonably wishes to conceal and may delay the publication of
the report by up to ten years if the matter is particularly sensitive.””
The ‘strong policy intent of privacy in proceedings... in any international arbitration’ means 16.17
that even where court proceedings are brought in Singapore which do not fall under the
IAA or the AA but nonetheless relate to arbitration proceedings, the Singapore High Court
retains an inherent power to grant sealing orders barring public access to court files and
documents in appropriate cases."
b. Exceptions to the duty ofconfidentiality under Singapore law
Just as the nature and scope of a party’s obligation of confidentiality implied by Singapore 16.18
law are being developed on a case-by-case basis, the exceptions to that obligation have not
been exhaustively identified.'? As things currently stand, a party's duty of confidentiality
will not prevent disclosure of information or documents obtained during the course of an
arbitration if:2°
(a) the parties give their consent, express or implied;
(b) it is ordered by a court;
(c) it is reasonably necessary for the protection of the legitimate interests of a party;
(d) it is required in the interests of justice; or
(e) it is in the public interest.?'

1 IAA, ss 22-23; AA, ss 56-57. If parties to an arbitration have agreed that the arbitrator may perform the
role of mediator, should the dispute not be settled during the mediation, the mediator must disclose any con-
fidential information material to the arbitration which was obtained during the mediation before resuming his
or her role as arbitrator: IAA, ss 17(2)(b) and (3); AA, ss 63(2)(b) and (3).
7 Thus, in the case of AAY and others v AAZ [2011] 2 SLR 528, the Singapore High Court held that,
notwithstanding the objections of the plaintiff, the Court’s judgment could be published in redacted form
as the case was of ‘major legal interest’, provided the parties and all persons mentioned in the decision were
anonymized.
18 BBW v BBX and others [2016] SGHC 190 at [16] and [42].
19 AAY and ors v AAZ (n 13) para 59:
The courts have been atleast asready to accept that there are exceptions to confidentiality asthey have
been to accept the existence of the obligation of confidentiality itself. Aswith the obligation proper,
however, the scope and nature of itsexceptions have not been exhaustively and precisely identified,
and some ink has been split equivocating over whether and how they should be categorised.
20 John Forster Emmott v Michael Wilson & Partners Ltd(2008) 2 All ER(Comm) 193 (CA) para 107, cited
pe Ee at Ap tine a re neal Rl Pr 1 SLR 1093, para 64.
2! The English Court a ee een pen eae
cated inrelation tothe last ofthese exceptions, noting that ‘perhaps’ itapplies.

297
 Miscellaneous Provisions (SIAC Rules 38 to 41)

16.19 The application of these established exceptions to the duty of confidentiality arising under
Singapore law is dependent upon the context and circumstances of the particular case, includ-
ing the nature of the information or document(s) sought to be disclosed, to whom disclosure is
sought to be made, and for what purpose.”

2. Confidentiality under the SIAC Rules: Rule 39.1

Unless otherwise agreed by the parties, a party and any arbitrator, including any Emergency
Arbitrator, and any person appointed by the Tribunal, including any administrative secretary and
any expert, shall at all times treat all matters relating to the proceedings and the Award as confi-
dential. The discussions and deliberations of the Tribunal shall be confidential.
a. Confidentiality under the SIAC Rules
16.20 While some arbitral rules are silent on the issue of confidentiality,?? and others leave the issue to
be determined by the parties, the tribunal, or the applicable law,** SIAC has opted to impose an
express obligation of confidentiality on the parties, the tribunal and any person appointed by the
tribunal subject to the ability of the parties to agree otherwise.*®
16.21 The express duty of confidentiality imposed by Rule 39 is considered by some as one of the ‘cen-
tral’26 features of SIAC arbitration. Rule 39.1 requires the parties, the tribunal and, pursuant
to a change made in 2016, any person appointed by the tribunal (such as a tribunal secretary,
expert, or transcriber) to treat all matters relating to the proceedings and the award as confiden-
tial unless otherwise agreed by the parties. The tribunal's confidentiality obligation under Rule
39.1 is reinforced by paragraph 7.1 of the SLAC Code of Ethics for an Arbitrator (2015), which
requires that an arbitrator not use ‘confidential information acquired during the course of the
proceedings to gain personal advantage or advantage for others, or to affect adversely the interest
of another ’.?”
16.22 The confidentiality provisions of the SIAC Rules were also modified in 2016 to make
express for the first time that the tribunal’s duty of confidentiality extends to the details
of the tribunal's deliberations, the secrecy of which has been described as a ‘fundamen-
tal principle which constitutes one of the mainsprings of arbitration’.8 The confidential

22 AAY and ors v AAZ(n 13) para 64.

23 UNCITRAL Arbitration Rules (2010).
24 ICC Rules 2017, Art 22(3) (the tribunal may make orders concerning the confidentiality of the arbitra-
tion upon the request of a party).
25 An express duty of confidentiality is also set out in the LCIA Rules (2014), Art 30 (although the duty
of confidentiality imposed on the tribunal is made express only in relation to the tribunal's deliberations); the
HKIAC Rules (2013), Art 42; the ACICA Rules (2016), Art 22.2; the KCAB International Arbitration Rules
(2016), Art 57.2; CIETAC Arbitration Rules (2015), Art 38.2; ICDR International Arbitration Rules (2014),
Art 37.1; JCAA Commercial Arbitration Rules (2015), Rule 38.2; KLRCA Arbitration Rules (2013), Rule
15.1; SCC Rules (2017), Art 3; and Swiss Rules (2012), Art44.1.
26 PT First Media TBK (formerly known as PT Broadband Multimedia TBK) v Astro Nusantara International
BV and others and another appeal (2014) SLR 372at[186]: “The centrality ofconfidentialit
toarbitration
y inthe
SIAC is evident
from 134 of the2007 SIAC Rules’, which was a predecessor of Rule 39 of the2016 SIAC Rules.
27 SIAC Code ofEthics foranArbitrator (2015) para 7.1. Any administrative secretary appointed by a SIAC
tribunal must provide a declaration of confidentiality before accepting his or her appointment: SIAC Practice

Se MidsDonan deememihogen tee arbitrage national

Meronaetinternationa
(2nd edn, GLN
l Joly 1990)
343, Other arbitral institutions have followed a similar approach: GIA RiderR014).ActSuckSeuetee
(2012), Art 44(2); HKIAC Rules (2013), Art 42.4; and DIAC Rules (2007), Art 41.2.

298
 B. Rule 39—Confidentiality

nature of the tribunal's deliberations, however, may be subject to exceptions under

applicable law.”
In contrast to the rules of some other arbitral institutions,» the duty of confidentiality 16.23
prescribed by Rule 39.1 does not extend to witnesses and party-appointed experts. Nor
does it expressly apply to the SIAC Secretariat and SIAC Court.*’ Rule 40.1 provides
that ‘the parties agree’ that the discussions and deliberations of the SIAC Court are con-
fidential; but no express duty is imposed upon the Court members by the SIAC Rules,?2
That notwithstanding, the members of the SIAC Secretariat and Court will be expected
to respect the confidential nature of SIAC arbitration. Further, the parties may negotiate
their own confidentiality agreement to encompass witnesses and party-appointed experts
and other participants in the arbitration. Alternatively, che tribunal may issue an order
on confidentiality tailored to the specific circumstances of the case in consultation with
the parties.”
Equally,
itisopen to the parties to agree that an arbitration is not confidential. * 16.24
3. Rule 39.2
Unless otherwise agreed by the parties, a party or any arbitrator, including any Emergency
Arbitrator, and any person appointed by the Tribunal, including any administrative secretary
and any expert, shall not, without the prior written consent of the parties, disclose to a third
party any such matter except:
a for the purpose of making an application to any competent court of any State to enforce
or challenge
the Award;
b. pursuant to the order of or a subpoena issued by a court of competent jurisdiction;
¢ forthe purpose of pursuing or enforcing a legal right or claim;
din compliance with the provisions of the laws of any State which are binding on the party
making the disclosure or the request or requirement of any regulatory body or other
authority; ‘
e pursuant to an order by the Tribunal on application by a party with proper notice to the
other parties; or
£ for the purpose of any application under Rule 7 or Rule 8 of these Rules.

Pas i uy.
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 Miscellaneous Provisions (SIAC Rules 38 to 41)
ee eee ne RERN ANE TINN EE
a. Exceptions to the duty ofconfidentiality under the SIAC Rules
16.25 Consistent with Singapore law, Rule 39.2 prescribes a number ofexceptions to the obliga-
tion of confidentiality imposed by Rule 39.1. To those can be added an additional exception
which is made explicit in Rule 39.3, namely that matters relating to an arbitration that are in
the public domain are not considered confidential.
16.26 The opening lines of Rule 39.2 make clear that, in addition to the six exceptions enumerated
in sub-paragraphs (a) to (f) of the rule, the parties can consent to the disclosure of informa-
tion or documents relating to an arbitration that would otherwise be confidential. This can
be done generally or in relation to specific information or documents. :

16.27 Rule 39.2(a) provides that a party may disclose matters relating to an arbitration for the pur-
poses of making an application to any competent court ‘to enforce or challenge an Award’.
16.28 A party may disclose confidential information relating to an arbitration pursuant to Rule
39.2(b) if subject to a court order or subpoena requiring such disclosure.
16.29 A party may also disclose confidential information relating to an arbitration pursuant to
Rule 39.2(c) if necessary to pursue or enforce a legal right or claim. For instance, a party may
need to disclose matters relating to an arbitration to a court from which it seeks interim relief.
A party may also need to adduce evidence in court of a position that was taken by a party in
an earlier arbitration so as to establish an issue estoppel.*°
16.30 The terms of Rule 39.2(d) reflect the fact that national laws, such as those relating to the regu-
lation of market-traded securities or serious crime, may require the disclosure of informa-
tion or documents relating to an arbitration. For instance, the Corruption Drug Trafficking
and Other Serious Crimes (Confiscation of Benefits) Act requires the disclosure of sus-
pected serious criminal conduct in Singapore.36 Failure to do so may be subject to a crim-
inal sanction.” This legislation was considered in the case of AAY and others v AAZ, where
the Singapore High Court held that even though the aforementioned Act did not apply in
the circumstances: ‘the defendant's disclosure to the [Commercial Affairs Department] was
nevertheless excepted from the obligation of confidentiality because the defendant had rea-
sonable grounds to suspect criminal behaviour by the plaintiffs’38
16.31 Rule 39.2(d) allows a party to comply with a request for disclosure of information relating
to an arbitration from a regulatory body such as a taxation authority or securities regulator
without breaching its confidentiality obligations.

35 In Associated Electric and Gas Insurance Services Ltd v European Reinsurance Company ofZurich (2003) 1
WLR 1041 (PC) paras 14-15 the Privy Council held that issue estoppel meant that the parties to the second
arbitration proceedings were bound by an earlier arbitral award between the same parties on the same issue and
that confidentiality was immaterial in that context, despite an express confidentiality agreement entered into
during the course of the first arbitration.
%© ‘The Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A)
(Singapore), s 39(1) imposes a duty of disclosure if a person knows or has reasonable grounds to suspect that
any property represents the proceeds of, was used in connection with, or is intended to be used in connection
with, drug trafficking or criminal conduct. Section 39(6) of the same Act states that such a disclosure ‘shall not
be treated as a breach of any restriction upon the disclosure imposed by law [or] contract’.
3” The Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A)
(Singapore), s 39(2).
38 AAY & ors vAAZ(n 13) para 106.

300
 B. Rule 32—Confidentiality

Rule 39.2(e) was added to the SIAC Rules in 2013 in recognition of the difficulties a closed 16.32
list of exceptions may cause. It provides the tribunal with a residual discretion upon appli-
cation by a party to permit disclosure of confidential information relating to an arbitration
in situations which are not covered by Rules 39.2(a)—(d) and (f), provided the other party is
given proper notice of the application and thus an opportunity to be heard before an order
is made.
Rule 39.2(f) was added to the SIAC Rules in 2016 to give effect to the joinder provisions 16.33
developed at Rule 7 and the consolidation provisions introduced at Rule 8.4° It confirms
that a party to a SIAC arbitration may disclose the existence or details of an arbitration to
SIAC in order to have a third party joined to the arbitration or have two or more arbitrations
consolidated. It remains an open question whether a party to an arbitration could disclose
confidential information relating to the arbitration to a non-party in order to facilitate that
non-party being joined to the arbitration. In such circumstances, it may be necessary for the
party to make an application to the tribunal under Rule 39.2(e) for an order permitting such
disclosure to the non-party.
Notably, only Rule 39.2(e) expressly requires that notice be given to the other party ifa party 16.34
intends to disclose confidential information pursuant to a Rule 39.2 exception." If this raises
a concern, it can be addressed in a bespoke confidentiality agreement or by an order of the
tribunal.

4. Rule 39.3

In Rule 39.1, ‘matters relating to the proceedings’ includes the existence of the proceedings,
and the pleadings, evidence and other materials in the arbitral proceedings and all other docu-
ments produced by another party in the proceedings or the Award arising from the proceed-
ings, but excludes any matter that is otherwise in the public domain.
a. Scope ofthe duty ofconfidentiality under the SIAC Rules
SIAC has adopted a relatively broad conception of what must be kept confidential. 16.35
Rule 39.1 requires that ‘all’ matters relating to the proceedings and the award be treated as 16.36
confidential. Rule 39.3, in turn, defines ‘matters relating to the proceedings’ as not only
including the pleadings, evidence, and documents produced by the other party,” but goes

39 Associated Electric and Gas Insurance Services Ltd (AEGIS) v European Reinsurance Co ofZurich [2003] 1
WLR 1041 (PC) para 120, per Lord Hobhouse, formulating a comprehensive code of exceptions ‘runs the risk
of failing to distinguish between different types of confidentiality which attach to different types of documents
or to documents which have been obtained in different ways and elides privacy and confidentiality’.
“0 Rule 39.2(f) partially resolves the tension which existed in previous editions of the SIAC Rules between
the confidentiality obligations imposed on the parties and the ability to apply to join third parties to an arbi-
tration. This tension was noted by the Singapore Court of Appeal in PT First Media TBK (formerly known as
PT Broadband Multimedia TBK) v Astro Nusantara International BV and others and another appeal at |186-87).
41 In contrast, ACICA Rules (2016), Art 22.3 provides:
Any party planning to make a disclosure under Article 22.2 must within a reasonable time prior
to the intended disclosure notify the Arbitral Tribunal, ACICA and the other parties (ifduring the
arbitration) orACICA and the other parties (ifthe disclosure takes place after the conclusion ofthe
arbitration) and furnish details of the disclosure and an explanation ofthe reason forit.
42 This isconsistenwith t LCIA Rules (2014), Art 30.1, under which the duty of confidentiality covers
the award, ‘all materials in the arbitration created for the purpose of the arbitration and all other documents
prod by another
uced party intheproceenot otherwise in the public domain’; and Swiss Rules (2012),
dings

301
 Miscellaneous Provisions (SIAC Rules 38 to 41)
ne eee
farther than many rules of arbitration by expressly requiring that the very existence of the
arbitration be kept confidential.”
16.37 Lastly, Rule 39.3 stipulates chat the obligation of confidentiality owed by the parties and the
tribunal does not apply to information relating to an arbitration that is already in the public
domain and thus by definition no longer confidential.”
b. Publication ofSIAC awards
16.38 SIAC entered into an agreement with LexisNexis in 2012 to publish SIAC awards. This
should facilitate the development of a body of SIAC jurisprudence that can be utilized by
practitioners to strengthen their arguments and by tribunals to test their reasoning. It needs
to be done, however, in a way that does not undermine the parties’ and the tribunal's obliga-
tions of confidentiality. Thus, the SIAC Practice Note for Administered Cases provides that
an award shall only be published after the names of the parties and any identifying infor-
mation have been redacted and, importantly, after consultations with the parties and the
tribunal.

5. Rule 39.4

The Tribunal has the power to take appropriate measures, including issuing an order or Award
for sanctions or costs, if a party breaches the provisions of this Rule.

a. Breaches ofRule 39
16.39 The tribunal may grant reliefin the event a party breaches its duty of confidentiality imposed
by Rule 39.1.4° This includes issuing an order for costs, imposing an injunction requiring a
party to desist or refrain from breaching its confidentiality obligation,’’ or ordering damages
for any losses caused by the breach.

Art 44(1), under which the duty of confidentiality extends to ‘all awards and orders as well as all materials
submitted by another party in the framework of the arbitral proceedings not already in the public domain’.
Other rules describe the extent of the duty of confidentiality in more general terms: for example HKIAC
Rules (2013), Art 42.1 (‘any information relating to: (a) the arbitration under the arbitration agreement(s);
and (b) an award made in the arbitration’); SCC Rules, Art 3 (‘the confidentiality of the arbitration and the
award’); JCAA Commercial Arbitration Rules, Rule 38.2 (‘facts related to or learned through the arbitral
proceedings’).
43 Similarly, ACICA Rules (2016), Art 22.2 requires the existence of the proceedings to be kept confidential.
“ In Department ofEconomics, Policy and Development of the City ofMoscow v Bankers Trust Co {2004] 3
WLR 533 (English Court of Appeal) the Court of Appeal held that the respondent in an arbitration could com-
municate to third parties information in relation to the arbitration which had been published. The arbitration
had taken place in private and an award was issued to the parties. While the hearing of a court challenge to the
award also took place in private in accordance with CPR r 62.10(3)(b) (England), the judge omitted to mark the
judgment as ‘private’ when it was handed down. Lawtel, an online law reporting service, received a copy of the
judgment, which it summarized on its website. In allowing the respondent to distribute the Lawtel ;
Sir Andrew Morritt V-C held (at para 53) that ‘(t]he summary is inherently unobjectionable [as it contained no
“sensitive or confidential information”}’and was, for all practicable purposes, in the public domain.
“9 SIAC Practice Note for Administered Cases (2 January 2014) para 32.
“© The SIAC Rules are silent as to the relief available in the event an arbitrator breaches his or her obligation
of confidentiality. The parties could potentially challenge the arbitrator under Rule 17.2 for a failure to perform
his or her functions in accordance with the SIAC Rules. The SIAC President could on his or her own initiative
remove an arbitrator on the same grounds pursuant to Rule 17.3.
M - MeJohn Sutton, J Gill, and M Gearing, Russell on Arbitration (24th edn, Sweet & Maxwell 2015)
para 5-223.

302
 C. Rule 40—Decisions of the President, the Court, and the Registrar

C. Rule 40—Decisions of the President, the Court, and the Registrar

Rule 40 was added to the SIAC Rules in April 2013 to ensure the finality of the decisions 16.40
taken by the SIAC President, the SIAC Court, and the Registrar. As explained in this part of
the chapter, that finality is subject to two exceptions.

1. Rule 40.1

Except as provided in these Rules, the decisions of the President, the Court and the Registrar
with respect to all matters relating to an arbitration shall be conclusive and binding upon the
parties and the Tribunal. ‘The President, the Court and the Registrar shall not be required to
provide reasons for such decisions, unless the Court determines otherwise or as may be pro-
vided in these Rules. The parties agree that the discussions and deliberations of the Court are
confidential.

a. The conclusive and binding nature ofdecisions made by the SIAC President, Court, and
Registrar
Rules 9.4 and 16.4, respectively, provide that the decisions of the President and the SIAC 16.41
Court in relation to the appointment or challenge of arbitrators are final and not subject
to appeal.** Rule 40.1 goes farther in that it provides that a// decisions made by the SIAC
President,” the SLAC Court,°° and the Registrar>' are deemed to be conclusive and binding
on the parties and the tribunal.
There are two exceptions. First, the SLAC Rules indicate that certain decisions are not 16.42
intended to be final. Decisions made under Rule 28.1 as to whether there is a valid arbitra-
tion agreement under the SIAC Rules, for instance, are made by the SIAC Court on a prima
facie basis. The decision is not binding on the tribunal, which is competent to determine its
own jurisdiction.* ;
Second, the conclusive effect of the decisions taken by the SIAC President, the SIAC Court, 16.43
and the Registrar are subject to any mandatory provisions of the /ex arbitri.33 By way of
illustration, while SIAC Rules 16.4 and 40.1 provide that a decision of the SIAC Court on

48 SIAC Rules (2016), Rule 9.4: ‘Any decision by the President to appoint an arbitrator under these Rules
shall be final and not subject to appeal.’ Rule 16.4: the Court’s decision as to challenge of an arbitrator ‘shall be
final and not subject to appeal’.
49 Decisions taken by the SIAC President include whether proceedings should be conducted in accordance
with the expedited procedure (Rule 5.2), the appointment of arbitrators (Rule 9.3), whether an emergency
arbitrator should be appointed (Sch 1, para 3), and whether an arbitrator should be removed from office
17.3).
Sia taken by the SIAC Court include whether there is prima facie evidence of a valid arbitration
to Rule 25.1 and the determination of applications for consolidation under Rules 6 and 8,
for joinder under Rule 7 and arbitrator challenges under Rule 15.
51 Decisions taken by the Registrar include decisions as to: time limits (Rules 2.6 and 5.2); whether to
appoint three arbitrators (Rule 9.1); the terms of appointment for arbitrators (Rule 9.6); whether to suspend
while an arbitrator challenge is resolved (Rule 15.4); the ordering of translations (Rule 22.2);
whether to refer anobjection tothe jurisdiction ofthe tribunal to the SIAC Court (Rule 28.1); the issuance of
an award (Rule 32.3); and the fixing ofadvances on costs (Rule 34) and tribunal fees (Rule 36.1).
thetribunal
ofon
52 Fora discussion onthejurisdicti and the princ iple
ofcompetence-comp etence, seeCh 10.
53 SIAC Rules (2013), Rule 1.1 that any mandatory provisions of the applicable law will prevail
over the SIAC Rules tothe extent of any conflict. Though this language has been omitted from the 2016 SIAC
Rules, theprinciple holds true that any mandatory law bydefinition must prevail over theSIAC Rules.
303
 Miscellaneous Provisions (SIAC Rules 38 to 41)
ee
s what
a challenge to an arbitrator is final and not subject to appeal, Singapore law provide
appears to be a mandatory right of challenge to the Singapore High Court within 30 days of
a party's receiving notice of such a decision.”
16.44 The SIAC President, SLAC Court, and Registrar are not required to give reasons for their
decisions unless the Court determines otherwise or as provided in the SIAC Rules. As an
exception to this general rule, Rule 16.4 requires the SIAC Court to give reasons for its deci-
sion on a challenge to an arbitrator unless otherwise agreed by the parties.
16.45 Finally, Rule 40.1 was modified in 2016 to provide that the discussions and deliberations of
the SIAC Court are confidential.5> This would appear intended to preclude parties seeking
access to information regarding the deliberations of the SIAC Court.”
2. Rule 40.2

Save in respect of Rule 16.1 and Rule 28.1, the parties waive any right of appeal or review in
respect of any decisions of the President, the Court and the Registrar to any State court or
other judicial authority.

a. Waiver ofright to challenge decisions made by the SIAC President, SIAC Court,
and Registrar
16.46 In order to ensure that the decisions of the SIAC President, the SIAC Court, and the Registrar
are final and binding pursuant to Rule 40.1, the parties agree in Rule 40.2 to waive any right
of appeal or review in respect of such decisions.
16.47 The parties’ waiver of a right of appeal or review under Rule 40.2 is subject to Rule 16.1
(decisions on arbitrator challenges)>” and Rule 28.1 (prima facie decisions on jurisdiction),
as well as any conflicting mandatory provisions of the applicable law.**

D. Rule 41—General Provisions

16.48 As the heading ‘General Provisions’ indicates, the three paragraphs of Rule 41 are not related
to each other. They cover the circumstances in which a party waives its rights (Rule 41.1),
the means by which any gaps in the rules are filled (Rule 41.2), and the status of non-English
translations of the SIAC Rules (Rule 41.3). Each is considered in turn.

— . Rule 41.1

Any party that proceeds with the arbitration without promptly raising any objection to a
failure to comply with any provision of these Rules, or of any other rules applicable to the
proceedings, any direction given by the Tribunal, or any requirement under the arbitration

% TAA, s 3(1); 1985 UNCITRAL Model Law, Art 13(3); and AA s 15(4). See the discussion of mandatory
law in the context of Rule 1.1 in Ch 5.
55 Tribunal deliberations are also confidential pursuant to Rule 39.1.
56 As already noted, the SIAC Rules do not expressly require the SIAC Court members tokeep confidential
the deliberations to which they are party.
57 [tis not clear from the terms of Rule 16.1 how adecision of the SIAC Court on an arbitrator challenge can
be appealed or reviewed. As explained at para 16.43, however, Singapore law provides a right of appeal against
decisions on arbitrator challenges.
58 See para [16.43].

304
 D. Rule 41—General Provisions

agreement relating to the constitution of the Tribunal or the conduct of the proceedings, shall
be deemed to have waived its right to object.

4. Waiver ofright to object

A party will waive its right to object if it proceeds with an arbitration without raising
an 16.49
objection promptly after learning that a party or arbitrator has not complied with a provision
or requirement under the SIAC Rules, any other applicable rules, a direction of the tribunal,
or the parties’ arbitration agreement.
A similar principle applies under Singapore law for arbitrations seated in Singapore. Article 16.50
4 of the 1985 UNCITRAL Model Law, incorporated into the IAA pursuant to section 3(1)
thereof, provides as follows:
A party who knows that any provision of this Law from which the parties may derogate or any
requirement under the arbitration agreement has not been complied with and yet proceeds
with the arbitration without stating his objection to such non-compliance without undue
delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to
have waived his right to object.59
The question as to whether an objection has been raised promptly (as required by Rule 41.1) 16.51
or without undue delay (as required by Singapore law) is fact specific and will be determined
on a case-by-case basis.

2. Rule 41.2

In all matters not expressly provided for in these Rules, the President, the Court, the Registrar
and the Tribunal shall act in the spirit of these Rules and shall make every reasonable effort to
ensure the fair, expeditious and economical conclusion of the arbitration and the enforceabil-
ity of any Award.
a. Spirit ofthe SIAC Rules :
The SIAC Rules do not prescribe a solution for every procedural issue that may arise 16.52
during the course of an arbitration. Rule 41.2 requires that any lacuna be filled with
reference to the ‘spirit of these Rules’. This is an amorphous concept, allowing a high
degree of flexibility in its application. Nonetheless, Rule 41.2 prescribes four funda-
mental principles by which a SIAC arbitration must be conducted and which could be
said to reflect the spirit of the SIAC Rules. Those principles, which can help to fill a gap
Ps

59 The AA does not address this point.

69 In ADG and another v ADI and another matter [2014] SGHC 73, the plaintiffs sought to set aside an arbi-
tral award on the grounds that they were denied natural justice. Specifically, the plaintiffs objected to the arbitral
tribunal's decision to declare the proceedings closed on 4 June 2013 and to reject the plaintiffs’ application to
have the proceedings re-opened on 9 June 2013 on the basis that thisdenied them the opportunityto introduce
new relevant evidence. The tribunal issued its award in mid-July 2013, which theplaintiffs applied to setaside in
late July2013. The Singapore High Court considered that ‘it could be said that the plaintiffs have waived their
right to raise thisobjection now’byfailing toraiseitsobjection firstwiththetribunal. InEssar Oilfields Services
Limited v Norscot RigManagement PVT Limited (2016] EWHC 2361 (Comm) the English High Court foun
that the claimant had waived its right to object to the awarding of costs to cover the respondent's third party
funding costs, even though ithad argued inthearbitration that therespondent was not entitled tosuch costs,
asithad not framed that argument in terms of improper conduct or anirregularity in the proceedings. See also
New Age Alzarooni 2 Limited and another v Range Energy Natural Resources Inc 2014] EWHC 4358 (Comm) at
[24-34] and (Terna Bahrain Holding Company WLL v AliMarzook Ali BinKamil Al Shamsi and others |2012]
EWHC 3283 (Comm) at[125-27].
305
 Miscellaneous Provisions (SIAC Rules 38 to 41)

in the rules and also have a wider application, are: fairness, expedition, economy, and
enforceability.
16.53 The first three of these principles are addressed in Chapter 10 (paragraphs in the context of
a discussion of Rule 19.1, which imposes an obligation on the tribunal ‘to ensure the fair,
expeditious, economical and final resolution of the dispute’).
16.54 As for enforceability, the SIAC President, SIAC Court members, the Registrar, and the tri-
bunal must perform their functions with a view to ensuring that any award that is rendered
is enforceable. That is not to say that these individuals are expected to know all the formal
requirements for the enforceability of an award in any given country.®' It can be expected,
however, that they will have regard for certain standards which are common to most coun-
tries’ regimes for the enforcement of awards, and indeed are reflected in the New York
Convention and the 1985 UNCITRAL Model Law. The standards include the need for a
valid arbitration agreement; respect for the rules of natural justice; arbitrator independence
and impartiality; reasoned decisions; and an award which does not go beyond the scope of
a tribunal’s jurisdiction, is consistent with any agreement of the parties, and respects inter-
national public policy. These principles are policed to some extent by the SIAC President,
the SIAC Court, and the Registrar when choosing whether to accept a claimant’s Notice
of Arbitration; overseeing the constitution of the tribunal; determining any prima facie
challenges to jurisdiction under Rule 28.1 or arbitrator challenges pursuant to Rule 16.1;
scrutinizing draft awards; and more generally by the Secretariat’s constant monitoring of the
progress of an arbitration.
16.55 The spirit of the SIAC Rules also arguably encapsulates other key principles underscoring the
rules, including consultation between the tribunal and the parties before the tribunal makes
a decision, the autonomy of the tribunal,® and respect for the mandatory provisions of the
applicable law.™
16.56 Rule 41.2 does not apply to the parties.® In practice, however, the parties are expected to
facilitate the fair, expeditious, and economical determination of a dispute. They may also
be required to facilitate enforcement of an award by, among other things, being ordered to
refrain from dissipating assets pursuant to Rule 27(i).®

3. Rule 41.3

In the event of any discrepancy or inconsistency between the English version of these
Rules and any other languages in which these Rules are published, the English version
shall prevail.

6! SIAC officers, however, may be able to provide guidance on any special requirements for the enforcement
of awards in regional countries, such as the need for arbitrators to play an active role in the enforcement of an
award in Indonesia. See para [16.10].
62 SIAC Rules (2016), Rule 19.1: ‘after consulting with the parties’.
63 SIAC Rules (2016), Rule 19.1: ‘The Tribunal shall conduct the arbitration in such manner as it considers
appropriate.’ See the discussion of Rule 19.1 at Ch 9, paras [9.04—9.05].
64 SIAC Rules (2016), Rule 27.1.
6 In contrast, LCIA Rules (2014), Art 32.2; SCC Rules (2010), Art 2; ICC Rules (2017), Art 22.1; HKIAC
Ser’rma = 13.5; ACICA Rules (2016), Art 3; ICDR Arbitration Rules (2014), Art 20.7; and Swiss Rules

% See the discussion of Rule 27(i) at Ch 12, paras (12.26-12.28).

306
 D. Rule 41—General Provisions
|
4. Non-English versions of theSIAC Rules
SIAC has published translations of the 2016 SIAC Rules in Chinese, Farsi, Germ
an, 16.57
Indonesian, Japanese, Korean, Portuguese, Russian, and Vietnamese.®” The English lan-
guage version of the SIAC Rules takes precedence over any other version of the SIAC Rules,
®

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 17
AD HOC ARBITRATION

A. Introduction to Ad Hoc Arbitration —_17.03 3. Selection of SIAC by the Secretary-

B. SIAC Support of Ad Hoc Arbitration 17.15 General of the PCA A745
1. Singapore law 1A 4, SIAC support of cases conducted under
2. An agreement of the parties 17.20 the UNCITRAL Arbitration Rules 17.27

17.01 An ad hoc arbitration is defined, broadly speaking, as an arbitration that is not administered by
an arbitral institution.' With that as its definition, one may be surprised to learn that an arbi-
tration institution can have a role to play in an ad hoc arbitration. As explained in this chapter,
the smooth running of an ad hoc arbitration can be facilitated by the appointment of an arbitral
institution such as SIAC to perform certain limited functions and, in particular, to be on standby
to step in should the process for the constitution of the tribunal or its functioning break down.
17.02 The chapter begins with a brief introduction to ad hoc arbitration in part A. The three ways
in which SIAC may be called upon to support an ad hoc arbitration, and the types of services
it can provide, are described in part B.

A. Introduction to Ad Hoc Arbitration

17.03 Anad hoc arbitration agreement can take various forms. At its most basic, and with the great-
est risk of failure, parties can simply agree to arbitrate future disputes without designating an
institution to administer the arbitration. Parties in such circumstances should at a minimum
agree on the seat of arbitration, the courts and laws of which can be used to fill any gaps left
in the parties’ arbitration agreement.
17.04 Alternatively, parties can negotiate a detailed ad hoc arbitration agreement. Such an agree-
ment should cover, among other things, the seat of arbitration; the applicable law; the
number of arbitrators and the method of their appointment; document disclosure; witness
statements; written submissions; the effect of the tribunal’s orders and awards; waiver of
sovereign immunity for contracts involving States; and costs. The potentially lengthy nego-
tiations and the sophistication required to finalize a detailed ad hoc arbitration agreement
covering these issues can be justified where the sums at stake are large or where there are
unique procedural issues to be addressed.

' Bovis Lend Lease Pte Ltd v Jay-Tech Marine & Projects Pte Ltd and Another Application {2005} SGHC 91,
para 21.

308
 A. Introduction to Ad Hoc Arbitration

A third option, and the most efficient, is for the parties to agree that an arbitration will be 17.05
conducted in accordance with an established set of ad hoc rules, the most well known of
which are the UNCITRAL Arbitration Rules (discussed in part B of this chapter).

Parties can agree to ad hoc arbitration either when negotiating the underlying contract or 17.06
after a dispute has arisen. The latter is sometimes referred to as a ‘submission to arbitration’,
Ad hoc arbitration has several attractions. The key advantage as compared to institutional 17.07
arbitration is flexibility: the parties can craft the rules of procedure to suit their specific needs.
Secondly, ad hoe arbitration allows the parties to avoid the cost of an arbitral institution
supervising the proceedings. Third, States and State-owned entities have traditionally pre-
ferred ad hoc arbitration due to a concern that commercial arbitral institutions are focused
on the needs of commercial users of arbitration, which is their main constituency.’
Ad hoc arbitration, however, carries certain risks. First, when negotiating and drafting an ad 17.08
hoc arbitration agreement, parties may fail to account for all eventualities that may arise dur-
ing an arbitration. The parties’ agreement on procedure may also be ambiguous or otherwise
defective. While problems with the agreement can be addressed by a tribunal once consti-
tuted, even appointing a tribunal may prove challenging if the ad hoc arbitration agreement
is defective. Second, ad hoc arbitration is more dependent than institutional arbitration on
the continuing good will and cooperation between the parties and their counsel.3 This mani-
fests most acutely at the beginning of an arbitration, when the proceedings can be delayed
and possibly derailed in some jurisdictions (although not Singapore)‘ if a party refuses to
appoint an arbitrator. In such circumstances, the other party will need to rely on the law and
potentially the courts of the seat of the arbitration to constitute the tribunal. Third, disputes
may arise between the parties, or between the parties and the tribunal, in relation to the arbi-
trators’ fees and expenses. Finally, some jurisdictions do not recognize ad hoc arbitration as
a legitimate form of dispute resolution. In particular, an arbitration in China will not be valid
unless it is administered by an ‘arbitration commission.®
Given these risks, parties should be careful not to inadvertently agree to ad hoc arbitration 17.09
when their intention is to provide for institutional arbitration. If parties wish to choose SIAC
arbitration, for instance, they should expressly indicate that the arbitration will be ‘adminis-
tered’ by SIAC in accordance with the SIAC Rules.’

2 SIAC has responded to these concerns by promulgating investment rules designed to encourage States and
State-owned entities to have their arbitrations administered by SIAC as an alternative to ad hoc arbitration.
This is discussed in Ch 19.
3 N Blackaby, C Partasides et al (eds), Redfern and Hunter on International Arbitration (6th edn, OUP 2015)
1.145.
wwe noted in para [17.17], for arbitrations seated in Singapore, the SIAC President and the two Vice-
Presidents of SIAC are authorized by Singapore law to appoint an arbitrator in the event a party or an agreed
appointing authority fails to do so. :
5 In the case of ICT Pty Ltd v Sea Containers Ltd [2002] NSWSC 77, the Supreme Court of New South
Wales removed the members of a tribunal in an ad hoc arbitration on grounds of misconduct for their attempt
to make the parties agree to pay hearing cancellation fees as a precondition to granting the parties’ joint request
vacate the hearing dates.
ad Arbitration Law of the People’s Republic of China: Art 16, English Translation provided by theNational
People's Congress available at: <http://www.npc.gov.cn/englishnpc/Law/2007-12/12/content_1 383756.
htm> (accessed8March 2016). The Chinese courts, however, are likelytorespect an ad hoc arbitration agree-
ifthe arbitration is held outside China.
AAiSiA adalat Gmnenitientiaaed.3 September 2015, expressly provides that ‘Any dispute ... shall be
bythe [SIAC] ...’ [Emphasis added. }
referred toand finally resolved by arbitration administered

309
 Ad Hoc Arbitration
i eee
17.10 The need for such clarity in the drafting of an arbitration agreement was illustrated in the
Singapore High Court case of Bovis Lend Lease Pte Ltd v Jay-Tech Marine & Projects Pte Ltd.
There, the parties had agreed in their contract that a sole arbitrator would be appointed by
the President of the Institute of Architects in Singapore, who would then ‘conduct the pro-
ceedings in accordance with the Rules of the Singapore International Arbitration Centre’.®
When a dispute arose the parties disagreed as to whether the contract provided for an arbi-
tration administered by SIAC or merely an ad hoc arbitration subject to the SIAC Rules (but
without SIAC administration). Prakash Jof the Singapore High Court determined that the
parties had agreed to ad hoc arbitration: :
There are two types of arbitration: the ad hoc arbitration and the institutional arbitra-
tion. The language of the [parties’ arbitration agreement] indicates that in this case, the
parties selected an ad hoc arbitration since they did not submit it to the administration
of any particular institution but designated one institution to be the default appointer
of the arbitrator and another institution to provide the procedural rules to govern the
proceedings.?

17.11 While Her Honour recognized that it would be difficult to adapt the SIAC Rules to an ad
hoc arbitration, the sole arbitrator was constrained to attempt to do so out of respect for the
principle of party autonomy as that was what the parties had agreed."
17.12 Similarly, Chinese courts have refused to recognize and enforce two ICC awards on the
grounds that while the parties had agreed to the ICC rules of arbitration, they did not
(expressly) stipulate that the ICC had the authority to administer the arbitrations.'! The
parties were deemed to have reached an ad hoc arbitration agreement, which, as already
mentioned, is not recognized under Chinese law. Further, the Chinese courts held the ICC
was wrong to administer the arbitrations given that the parties were held to have agreed to
ad hoc arbitration.
7.13 While one might argue that these decisions reflect an overly literal interpretation of
the relevant arbitration agreements, SIAC and the ICC have responded by amending
their rules to make clear that an agreement to adopt their rules should be taken to mean
that the parties have agreed that the relevant arbitral institution will have the authority
to administer any arbitration conducted in accordance with their institutional rules.'?
In any event, parties can avoid this debate by stipulating clearly in their arbitration

8 Bovis Lend Lease Pte Ltd v Jay-Tech Marine & Projects Pte Ltd (n 1) para 5.
° Bovis Lend Lease Pte Ltd v Jay-Tech Marine & Projects Pte Ltd(n 1) para 21.
'0 Bovis Lend Lease Pte Ltd v Jay-Tech Marine & Projects Pte Ltd(n 1) para 18.
"" In Ziiblin International GmbH v Wuxi Woco Gen Rubber Eng’g Co Ltd (People’s Ct of Wuxi, 2 September
2004) the Wuxi Court struck down an arbitration agreement which read ‘JCC Rules, Shanghai shall apply.’ The
Supreme People’s Court (SPC) in its reply letter to the Request for Instructions from the Wuxi Court upheld
the decision of the Court on the grounds that the parties only specified the arbitration rules to be applied, but
they did not explicitly appoint an arbitral institution. More recently, in Wicor Holding AG v Taizhou Haopu
Investments Ltd. (2015) Taizhou Court, PR China, Case Docket Number: [2015] Tai Zhong Shang Zhong
Shen Zi, No 00004, Decision of 2 June 2016, the Taizhou Intermediate People’s Court struck down an ICC
Award. The Court held that the ICC was wrong to administer the arbitration after the parties had only agreed
to arbitration ‘in accordance with ICC mediation and arbitration Rules’. The SPC subsequently endorsed the
decision of the Taizhou Court.
"2 SIAC Rules (2016), Rule 1.1 ‘the parties shall be deemed to have agreed that the arbitration shall
be ... admi nistunder SIAC’;
ered
by the ICC
[ICC] Rules
Rules’. (2017 Art
), 1(2) ‘{ICC] Court is the onl thorised totoadminadmin-
y body autho
ister arbitrations

310
 B. SIAC Support of Ad Hoc Arbitration

agreement that the institution whose rules have been adopted shall ‘administer’ the
arbitration.
Should parties agree, however, that they wish to have their disputes resolved through ad hoc 17.14
arbitration, they can help facilitate the smooth running of the arbitration by agreeing that
an arbitral institution will provide certain services in support of the proceedings. The role
that SIAC can play in this regard for ad hoc arbitration is the focus of the remainder of this
chapter.

B. SIAC Support of Ad Hoc Arbitration

SIAC’s support"? of ad hoc arbitration represents a significant proportion of its overall case- 17.15
load. In 2016, SIAC appointed 68 arbitrators in ad hoc cases and those under other sets of
rules (representing nearly 20 per cent of the 341 arbitrator appointments made by SIAC in
2016).'* Of the 343 new cases handled by SIAC in 2016,'5 36 (10.5 per cent) were ad hoc
cases. '6

As explained in this part, SIAC can be called upon to support an ad hoc arbitration through 17.16
(1) the application of Singapore law, (2) an agreement of the parties, or (3) its selection
by another institution acting on behalf of the parties. This chapter concludes with a con-
sideration of the services offered by SIAC for ad hoc cases subject to the UNCITRAL
Arbitration Rules.

1. Singapore law
The SIAC President and the two Vice-Presidents of SIAC are authorized by Singapore law to 17.17
appoint arbitrators in arbitrations seated in Singapore (including arbitrations not subject to
the SIAC Rules).'” Notably, unlike many other jurisdictions, this power has been granted to
arbitration officers rather than the local judiciary.
The statutory power (and responsibility) of SIAC and its officers to appoint an arbitrator 17.18
in arbitrations seated in Singapore is exercisable in the event that a party or an appointing
authority agreed by the parties fails to make the appointment."

13, While the SIAC Practice Notes refer to SLAC’s ‘administration’ (para 1) of cases subject to the UNCITRAL
Arbitration Rules, the term ‘support’ is used in this chapter rather than ‘administration’ so as not to confuse
SIAC’s role in administering cases under the SIAC Rules with the more limited support functions performed by
SIAC for cases governed by the UNCITRAL Arbitration Rules. See Bovis Lend Lease Pte Ltd v Jay-Tech Marine
& Projects Pte Ltd (n 1) para 21, discussed earlier in this chapter, where the Singapore High Court identified
‘administration’ of the arbitration as the key difference between institutional and ad hoc arbitration.
14 SIAC ‘Annual Report 2016’ (2016) 16. The number of arbitrators appointed in ad hoc cases in previous
years was as follows: 62 in 2012 (representing 37.1 per cent of the total number of appointments made that
year); 35 in 2013 (23.6 per cent); 15 in 2014 (13.2 per cent); and 11 in 2015 (8.7 per cent).
15 In its Annual Reports, SIAC uses the term ‘cases handled’ to refer to cases administered by SIAC under
the SIAC Rules, cases supported by SIAC under the UNCITRAL Rules and cases in which SIAC is requested
an authority.
: 16SIAC‘Annual Report ou (2016) 13. Precise figures on ad hoc cases have traditionally not been pub-
lished by SIAC. Between 2012 and 2016, SIAC administered43 under the UNCITRAL Rules (all itera-
tions). SIAC has also been designated as the appointing authority by the Secretary General of the PCA,
17 LAA, ss 8(2)—(3); 1985 UNCITRAL Model Law, Arts 11(3)-(4); AA, ss 13(4)—(9); Government Gazette
Notification Nos 755 and 773 of2015.
18 TAA,ss8(2)-(3); 1985 UNCITRAL Model Law, Arts 11(3)—(4); AA, ss 13(4)-(9).

311
 Ad Hoc Arbitration
ee ET
17.19 SIAC will charge the same appointment fee when called upon to exercise its statutory func-
tion as the default appointing authority under Singapore law as it would when appointing
an arbitrator under the SIAC Rules.

2. An agreement of the parties

17.20 Parties to an ad hoc arbitration agreement can designate SIAC as an appointing authority
whose function is to appoint an arbitrator if either party fails to do so or replace an arbitra-
tor should the need arise during the arbitration. SIAC will charge a fee for the service. At
the time of writing, non-Singaporean parties are subject to an appointment fee of between
S$ 3,000 to S$ 5,000, depending on the number of arbitrators appointed. Singapore parties
must pay these amounts plus GST."
17.21 In addition to appointing one or more arbitrators, SIAC can provide arange of other services
if agreed by parties to an ad hoc arbitration, including the following.”°
° Payment ofarbitrators. Parties to an ad hoc arbitration can agree that the arbitrator or arbi-
trators will calculate their fees in accordance with the SIAC Schedule of Fees (although the
arbitrators should be made aware of this before their being appointed). Arbitrators in ad
hoc arbitrations will usually opt for an hourly rate.
Financial management. SIAC can manage the financial aspects of an ad hoc arbitration
such as collecting and holding deposits from the parties to cover the costs of the arbitration
and settling payments to the arbitrators. SIAC charges the following fees:
(a) a Fundholding Fee of S$1,500 (or US$1,250 if the deposit is in US$) per
12-month period (excluding GST as may be applicable); and
(b) a transaction fee of $$120 (or US$100) per transaction requested by the tribunal
(excluding GST as may be applicable, bank charges or disbursements incurred).
Case management. SIAC no longer offers logistical support for ad hoc arbitrations due to
its focus on case administration and the substantive aspects of arbitrations, and given the
growth in its caseload. Parties are now invited to liaise with Maxwell Chambers or their
preferred hearing facility directly.
17.22 On one occasion, SIAC was asked by the parties to administer a so-called hybrid arbitra-
tion. Hybrid arbitrations arise when the parties agree on a procedure combining elements
from different rules of arbitration. This is not recommended as such procedures run the
risk of being ‘pathological’ (ie fatally flawed).?' But if it is sufficiently clear, SIAC can
implement a hybrid arbitration agreement. Thus, as discussed in Chapter 1, the SIAC
Secretariat applied the 1998 ICC Rules in its administration of the Alstom v Insigma
arbitration in accordance with its interpretation of the parties’ arbitration agreement
(which was subsequently upheld by the Singapore High Court and the Singapore Court
of Appeal).?2

'9 SIAC Schedule of Fees.

20 SIAC’s provision of these services in cases under the UNCITRAL Arbitration Rules is discussed at
paragraph 17.37.
21 Blackaby and Partasides, Redfern and Hunter (n 3) para 2.201.
22 Insigma Technology Co Ltd v Alstom Technology Ltd (2009) 3 SLR(R) 945 (Singapore Court of Appeal).
See Ch 1, paras [1.15—1.16].

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 B. SIAC Support of Ad Hoc Arbitration

3. Selection of SIAC by the Secretary-General of the PCA

In the event that one or more parties in an ad hoc arbitration subject to the UNCITRAL 17.23
Arbitration Rules, the terms of which are explained in sub-section 4 below, fails to appoint
an arbitrator and there is no agreed appointing authority, or if any appointing authority
agreed upon by the parties refuses to act or fails to appoint the arbitrator within a fixed time
frame, a party may request the Secretary-General of the Permanent Court of Arbitration in
the Hague, Netherlands (the PCA) to designate an appointing authority.23
The factors the Secretary-General of the PCA will consider when selecting an appointing 17.24
authority include: ‘the parties’ nationalities, geographical location, regional or global nature
of the dispute, legal tradition, languages spoken, complexity of the case, amounts in dispute,
and preferences of the parties’.”4
The Secretary-General of the PCA has designated the SIAC Chairman (or the SIAC 17.25
President, following changes made to SIAC’s corporate structure in April 2013)?5 as the
appointing authority under the UNCITRAL Arbitration Rules on more than [ten] occa-
sions. In these cases, Singapore was either the seat of the arbitration and/or one or more of
the parties was from Asia.?6
The PCA concluded a Host Country Agreement with Singapore in 2007,?’ which facilitates 17.26
the conduct of PCA-administered arbitrations in Singapore. The relationship between SIAC
and the PCA was further strengthened by the conclusion of a cooperation agreement under
which the PCA and SIAC undertake to provide hearing and meeting rooms, secretarial
support, and other services for hearings and meetings held in their respective locations for
arbitrations administered by the other institution.”8 In July 2017, the PCA concluded a
Host Country Agreement with Singapore for the establishment of a PCA office at Maxwell
Chambers to administer PCA hearings held in Singapore.?9 This will be the PCA’s first office
in Asia and the second outside The Hague, Netherlands where it is based.

4. SIAC support of cases conducted under the UNCITRAL Arbitration Rules

As already explained, parties may agree that any dispute between them arising under their 17.27
contract will be resolved in accordance with the UNCITRAL Arbitration Rules, while

23 UNCITRAL Arbitration Rules (1976), Arts 6(2), 7(2)—(3), and 13; UNCITRAL Arbitration Rules
(2010), Arts 6(1)—(2), 9(2)—(3), and 14.
24 P-J Le Cannu and D Drabkin, ‘Assessing the Role of the Permanent Court of Arbitration in the Peaceful
Settlement of International Disputes’ (2009) 27(2) Lobservateur des Nations Unies: Revue de l’Association
Francaise pour les Nations Unies, Section Aix-en-Provence 181, 188.
25 See Ch 4, paras [4.06—4.07].
26 Since 2005, the nationalities of the parties in cases in which the PCA designated SIAC as the appoint-
ing authority have included the British Virgin Islands, China, Cyprus, Hong Kong, India, Indonesia, Ireland,
Malaysia, New Zealand, Papua New Guinea, the Philippines, Singapore, South Korea, Thailand, and the
Unined ArabEmirates. ¥
l, 1.46].
bd a hye proceedings, the PCA provides hearing and meeting rooms to parties free of charge
when arbitrati ons
are held in Singapore. The same applies when arbitrations are held inThe Hague or countries
with which the PCA has Host Country Agreements, such asCosta Rica, Argentina, andVietnam.
29 Joint press release issued by the Ministry ofLaw, Singapore and the Permanent Court of Arbitration,
‘Permanent Cour t to set up office in Singapore’, 25 July 2017, available at <https://pca-cpa.org/
ofArbitration
; sites/175/2017/07/20170725_PCA-HCA-Signing-Joint-Press-release.pdf> (accessed 26
3-4.
1ands
September 2017) atpara

313
 Ad Hoc Arbitration
aa Seen
also agreeing that SIAC will perform the role of appointing authority under those rules.
Alternatively, the Secretary-General of the PCA may designate SIAC as the appointing
authority. In this sub-section, (a) an overview of the UNCITRAL Arbitration Rules is first
provided, followed by (b) a consideration of how SIAC can appoint arbitrators in cases
governed by the UNCITRAL Arbitration Rules, and (c) other services SIAC can provide to
parties engaged in arbitrations conducted under the UNCITRAL Arbitration Rules.
a. Overview ofthe UNCITRAL Arbitration Rules (1976 and 2010)
17.28 There are three versions of the UNCITRAL Arbitration Rules currently in force. The first,
the 1976 UNCITRAL Arbitration Rules, was adopted by the United Nations General
Assembly on 15 December 1976. The rules, which provide a framework for the conduct of
an arbitration, were designed to be ‘acceptable in countries with different legal, social and
economic systems .?°
17.29 The rules cover all aspects of an arbitration, including its commencement, the appointment
and challenge of arbitrators, the selection of the seat of arbitration, the jurisdiction of the
tribunal, the parties’ submissions, the consequences of a party’s default, the award, and costs.
17.30 After extensive consultations with governments and interested parties over a four-year
period, the United Nations adopted a second version of the UNCITRAL Arbitration Rules
on 6 December 2010.3! The 2010 rules retain the same structure, spirit, and drafting style as
the original text, with changes made to modernize the rules.*?
17.31 The main changes made to the 1976 UNCITRAL Arbitration Rules are (a) the removal of
the requirement that an arbitration agreement be in writing; (b) a new requirement for the
Respondent to submit a Response to a Notice of Arbitration within 30 days (no Response is
required under the 1976 rules); (c) new provisions for multi-party arbitrations and the join-
der of additional parties; d) express exclusions of liability of the arbitrators and the appoint-
ing authority; (e) more detailed provisions relating to interim measures; (f) the requirement
for a provisional procedural timetable to be prepared as soon as practicable after the tribu-
nal is constituted; and (g) increased scrutiny of the fees and expenses of arbitrators by the
appointing authority or the Secretary-General of the PCA.3
17.32 In more recent times, UNCITRAL has developed special transparency rules to be used in
investor-state disputes arbitrated under the UNCITRAL Arbitration Rules.** The 2013

30 UNGA Resolution 31/98, UNCITRAL Arbitration Rules, Recital 2; Report of the UNCITRAL on
the Work of its Sixth Session, UN Doc A/9017, IV Ybk UNCITRAL 11 (1973) paras 77-78. A similar state-
ment was made on the adoption of the UNCITRAL Arbitration Rules (2010): UNGA Resolution 65/22,
UNCITRAL Arbitration Rules as revised in 2010, Recital 7.
31 UNGA Resolution 65/22, UNCITRAL Arbitration Rules as revised in 2010.
32 Report of
Working Group on Arbitration and Conciliation on the Work of its Forty-Fifth Session, Vienna,
11-15 September 2006, UN Doc A/CN 9/614, paras 15-16, The UNCITRAL Arbitration Rules (2010) are
presumed to apply to an arbitration agreement referencing the UNCITRAL Arbitration Rules concluded after
15 August 2010 unless the parties have agreed otherwise: UNCITRAL Arbitration Rules (2010), Art 1(2).
33 For a discussion of the different functions of an appointing authority under the UNCITRAL Arbitration
Rules (2010) as compared to the UNCITRAL Arbitration Rules (1976), see SGrimmer, “The Expanded Role
of the Appointing Authority under the UNCITRAL Arbitration Rules 2010" (2011) 28(5) J Intl Arb $01,
4 UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration (2014), available at
<http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/2014Transparency.html> (accessed 16
March 2017). Art 1 provides that the transparency rules will apply: to arbitrations brought pursuant to an
investment treaty concluded on or after 1 April 2014 (unless the contracting States have agreed otherwise);
when the contracting States to an investment treaty concluded before 1 April 2013 have agreed after 1 April

314
 B. SIAC Support of Ad Hoc Arbitration

UNCITRAL Arbitration Rules are effectively the 2010 UNCITRAL Arbitration Rules
modified to include the transparency rules for investor-State arbitration.35
The UNCITRAL Arbitration Rules, in its three iterations, has proved to be one of the most 17.33
successful instruments promulgated by UNCITRAL.3 While initially developed for inter-
national commercial arbitration, the UNCITRAL Arbitration Rules have become the pre-
ferred choice in arbitrations involving States and State entities.3” Thus, the UNCITRAL
Arbitration Rules formed the basis of the rules of procedure for the Iran-US Claims Tribunal;38
influenced the development of the 1985 UNCITRAL Model Law;32 are referenced in the
dispute resolution provisions of a large number of investment treaties and are widely used in
investment treaty arbitrations;*° and have been adopted in State to State disputes.*
The influence of the UNCITRAL Arbitration Rules can also be seen in the development of 17.34
the SIAC Rules,” as well as in the rules of other arbitral institutions.”
b. The appointment ofarbitrators by SIAC in cases governed by the UNCITRAL
Arbitration Rules
When called upon to serve as the appointing authority in a case governed by the UNCITRAL 17.35
Arbitration Rules, the SIAC President can determine whethera sole arbitrator or three-person
tribunal should be appointed; appoint an arbitrator if one or more parties fails to do so;4°

2014 to their application; or when the disputing parties to an investor-State arbitration agree to the adoption
of the transparency rules.
35 UNCITRAL Arbitration Rules (2013), Art 1(4).
36 Report of Working Group on Arbitration and Conciliation on the Work of its Forty-Fifth Session (n 32)
a 16.
eo ICC, ‘ICC Commission Report on States, State Entities and ICC Arbitration’ (2012), available at
<https://cdn.iccwbo.org/content/uploads/sites/3/2015/10/ICC-Arbitration-Commission-Report-on-
Arbitration-Involving-States-and-State-Entities-under-the-ICC-Rules-of-Arbitration-2012.pd6& (accessed 16
March 2017), at para 2, notes that: “The Task Force was created in recognition of the fact that ICC arbitration,
although a powerful dispute resolution tool, was underused in disputes involving states and state entities’; and
at para 56: ‘States and state entities have raised concerns about the role of the [ICC] Court and ICC National
Committees in ICC arbitration.’ Other issues of concern raised by States and State entities with regard to
institutional arbitration include the need for transparency in the resolution of some disputes, the difficulty in
complying with short deadlines for the appointment of arbitrators and the tendering of submissions, and the
appropriateness of emergency arbitrator procedures in matters involving States. 2
38 DD Caronand LM Caplan, The UNCITRAL Arbitration Rules: ACommentary (2nd edn, OUP 2012) 5-6.
39 Caron and Caplan, UNCITRAL Arbitration Rules (n 38) 6.
40 Of767 known investment treaty arbitrations up to March 2017, 234 were governed by the UNCITRAL
Arbitration Rules: UNCTAD, ‘Investment Dispute Settlement Navigator’, available at <http://investmentpo-
licyhub.unctad.org/isds> (accessed 1 April 2017).
41 UNGA Resolution 65/22, UNCITRAL Arbitration Rules as revised in 2010, Recital 4.
42 Rule 2 (notice, calculation of periods of time); Rule 3 (notice of arbitration); Rule 7 (appointment of sole
arbitrator); Rule 8 (appointment of three arbitrators); 9 (information to be furnished to the appointing author-
ity); Rule 11 (challenge of arbitrators); Rule 12 (notice of challenge); Rule 13 (decision on challenge); Rule 14
(replacement of an arbitrator); Rule 15 (repetition of hearings); and Rule 30 (amount of theTribunal’s fees)
ofthe 1991 SIAC Rules follow closely, and at times mirror exactly, the corresponding provisions of the 1976
CITRAL Arbitration Rules.
pr Caron and Caplan, UNCITRAL Arbitration Rules (n 38) 6, noting that the KLRCA, the HKIAC, and
the Swiss Rules, among others, were based on the UNCITRAL Arbitration Rules. The PCA Arbitration Rules
(2012) cen: Rules (2010).

45 UNCITRAL Arbitration Rules (2010), Arts 8(1) and 9(2); UNCITRAL Arbitration Rules (1976), Arts
6(2)
and 7(2).
315
 Ad Hoc Arbitration

appoint a third arbitrator if the party-appointed arbitrators fail to do so;*® appoint the entire
tribunal in multi-party arbitrations if the parties fail to constitute the tribunal;*” determine
arbitrator challenges;48 and determine whether exceptional circumstances exist such that a
party should be deprived of its right to appoint a substitute arbitrator and either appoint a
substitute arbitrator on behalf of the relevant party or authorize the remaining members
of the tribunal to proceed as a truncated tribunal.*® When performing these functions, the
SIAC President may consult with members of the SIAC Court or the SIAC Secretariat.*°
The SIAC President will in so far as practicable use the list procedure set out in Art 8 of the
2010 UNCITRAL Rules when choosing an arbitrator.*' If the SIAC President considers the
list procedure to be inappropriate, he or she may select an arbitrator in accordance with the
SIAC appointment procedure.*?
c. Other services which SIAC can provide in support ofad hoc arbitrations governed by the
UNCITRAL Arbitration Rules
17.36 The SIAC Registrar has released two Practice Notes which provide guidance on the services SIAC
can provide in support® of ad hoc arbitrations governed by the 1976 and 2010 UNCITRAL
Arbitration Rules.54 The parties may agree to designate SIAC to provide such support either in
the original arbitration agreement or subsequent to a dispute arising.
17.37 In addition to acting as an appointing authority, SIAC will perform the following services if the
parties have designated SIAC to support an ad hoc arbitration governed by the UNCITRAL
Arbitration Rules:
* Financial management. The SIAC Secretariat will manage the financial aspects of
such an arbitration.>> The Secretariat will fix the tribunal’s fees in accordance with the
SIAC Schedule of Fees;** determine the extent to which arbitrator expenses are to be

46 UNCITRAL Arbitration Rules (2010), Art 9(3); UNCITRAL Arbitration Rules (1976), Art 7(3).
47 UNCITRAL Arbitration Rules (2010), Art 10(3).
48 UNCITRAL Arbitration Rules (2010), Art 13(4); UNCITRAL Arbitration Rules (1976), Art 12(1).
“9 UNCITRAL Arbitration Rules (2010), Art 14(2).
°° SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Arbitration Rules, para 8; SIAC
Practice Note for Cases Administered under the 2010 UNCITRAL Arbitration Rules (2 January 2014) para
tie term ‘SIAC President’ includes the SIAC Vice President and the SIAC Registrar: SIAC Rules (2016),
eb.
*' For a discussion of the list procedure for the selection of arbitrators, see Ch 8.
* SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Arbitration Rules (2 January
2014) paras 6-10; SIAC Practice Note for Cases Administered under the 2010 UNCITRAL Arbitration Rules
(2 January 2014) paras 6-10.
°3 See Ch 3, para [3.12].
*4 SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Atbitration Rules (2 January
2014); SIAC Practice Note for Cases Administered under the 2010 UNCITRAL Arbitrat
ion Rules (2
January 2014).
%° SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Arbitration
Rules (2 January
2014) paras 12-31; SIAC Practice Note for Cases Administered under the 2010 UNCITRAL
Arbitration
Rules (2 January 2014) paras 12-31.
*© SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Arbitration Rules (2
2014) paras 12(d) and 13-15; SIAC Practice Note for Cases Administered under the 2010 UNCIT
January
Arbitration Rules (2 January 2014) paras 12(d) and 13~15,
RAL

316
 B. SIAC Support of Ad Hoc Arbitration

reimbursed;*” render accounts of the tribunal’s fees and expenses to the parties;*® collect
deposits to cover the costs of the arbitration;>? and determine whether to make interim
payments to the tribunal members.©
Case management. The SIAC Secretariat will help to manage such an arbitration.
Specifically, the Secretariat will liaise with the arbitrators, the parties, and their counsel
on the service of notices; monitor the parties’ compliance with schedules and timelines
for submissions and witness statements; arrange hearing facilities; and organize ‘all other
matters which facilitate the smooth conduct of the arbitration’.®"
* Scrutiny of awards. While not required under the UNCITRAL Arbitration Rules, the
SIAC Registrar is available to scrutinize draft awards. When asked to do so, the SIAC
Registrar may suggest modifications as to the form of an award and draw a tribunal’s atten-
tion to points of substance,™
When designated by the parties to support an arbitration governed by the 1976 or 2010 17.38
UNCITRAL Arbitration Rules, SLAC charges fees for its services in accordance with the
SIAC Schedule of Fees.

7 SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Arbitration Rules (2 January
2014) paras 12(d), 13-14, and 16; SIAC Practice Note for Cases Administered under the 2010 UNCITRAL
Arbitration Rules (2 January 2014) paras 12(d), 13-14, and 16.
58 SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Arbitration Rules (2 January
2014) para 12(b); SIAC Practice Note for Cases Administered under the 2010 UNCITRAL Arbitration Rules
(2 2014) 12(b). |
ieamarPension: Neiefor Cases Administered under the 1976 UNCITRAL Arbitration Rules (2 January
2014) paras 12(c), 13-14, and 20; and SIAC Practice Note for Cases Administered under the 2010 UNCITRAL
Arbitration Rules (2 January 2014) paras 12(c), 13-14, and 20.
60 SIAC Practice Note for Cases Administered under the 1976 UNCITRAL Arbitration Rules (2 January
2014) paras 15 and 27-31; SIAC Practice Note for Cases Administered under the 2010 UNCITRAL
Arbitration Rules (2January 2014) paras 15 and 27-31.
6! SIAC Practice Note forCases Administered under the 1976 UNCITRAL Arbitration Rules (2 January
2014) para 3(c); SIAC Practice Note for Cases Administered under the 2010 UNCITRAL Arbitration Rules
(2January 2014) para 3(c). a
Note for CasesAdministered under the 1976 UNCITRAL Arbitration Rules (2 January
62 SIAC Practice
2014) paras 3(e) and 34; and SIAC Practice Note for Cases Administered under the 2010 UNCITRAL
Arbitration Rules 2014) paras 3(e) and 34.
e prac ati tickerchoosninciaairnd coe?vse1976 UNCITRAL Arbitration Rules (2 January
2014) para 34; SIAC Practice Note for CasesAdministered under the2010 UNCITRAL Arbitration Rules (2
January 201+¢ 34. SeeCh 14, paras [14.15-14.18].
64 st an eg ta me the 1976 UNCITRAL Arbitration Rules (2 January
the 2010 UNCITRAL Arbitration Rules(2
under d
2014) para 4; SIAC Practice Note for CasesAdministere
discussio
January 2014) para 4.For a of the SIAC of Fees, see Ch 15, para [15.15].
n Schedule

317
 18
SIAC DOMESTIC ARBITRATION

A. The SIAC Domestic Arbitration Rules 18.02 C. Domestic Arbitrations

B. The SIAC Summary Award under the 2016
Procedure under the 2007, 2010, SIAC Rules 18.23
and 2013 SIAC Rules 18.06

18.01 The history of the 2002 SIAC Domestic Arbitration Rules is described in part A of this chap-
ter. Part B considers the one remaining feature of the 2002 SIAC Domestic Arbitration Rules
which applies to SLAC domestic arbitrations conducted under the 2007, 2010, or 2013
SIAC Rules, namely a tribunal’s power to render a summary award in favour of a claimant or
counter-claimant if there is no valid defence to some or all of a claim. The 2016 SIAC Rules,
however, which are addressed in part C of this chapter, do not have any special provisions for
domestic arbitrations.

A. The SIAC Domestic Arbitration Rules

18.02 The first edition of the SIAC Rules, released in 1991, applied to all arbitrations (ie both inter-
national and domestic) referred to SIAC. SIAC subsequently released separate rules tailored
for domestic arbitrations in May 2001 and again in September 2002 (referred to herein as
the SIAC Domestic Arbitration Rules).' This split in the rules between those applicable to
domestic and international SIAC arbitrations was consistent with the two-track regulatory
environment which has existed in Singapore since 1994 (see Chapter 2). In short, the [AA
governs international arbitrations seated in Singapore, whereas the AA regulates domestic
arbitrations, subject to the ability of parties to opt into or out of the IAA or AA. The key dis-
tinction between the two legislative regimes is that the AA allows a greater degree of judicial
supervision and intervention than is permitted under the IAA.
18.03 The SIAC Domestic Arbitration Rules applied to cases in which the parties had agreed
to refer a dispute to SIAC and which were considered ‘domestic’, unless the parties had
expressly agreed to the application of the standard SIAC Rules.? A case was ‘domestic’ ifall

' During the period 2011-2016, there were no cases administered under the SIAC Domestic Arbitration
Rules, but there were two (domestic) cases administered under the 2010 SIAC Rules read in conjunction with
Schedule 2.
2 SIAC Domestic Arbitration Rules (2002), Rule 1.1.

318
 B. The SIAC Summary Award Procedure under the 2007, 2010, and 201 3 SIAC Rules

the parties had their places of business in Singapore at the conclusion ofthe arbitration agree-
ment and either a substantial part of the obligations was to be performed in Singapore or the
subject matter of the dispute was most closely connected with Singapore.?
The SIAC Domestic Arbitration Rules had a number of features which distinguished them 18.04
from the generally applicable SLAC Rules then in force. Specifically, the SIAC Domestic
Arbitration Rules allowed the parties to agree to have a dispute determined on an expedited
basis (which was not introduced into the broader SIAC Rules until 2010), and incorporated
a procedure by which Singapore court claims could be transferred to SIAC without the
claimant having to file a Notice of Arbitration.’ The Registrar was also empowered to super-
vise the determination of the tribunal’s fees and if necessary ‘seek explanations or justifica-
tions from the Tribunal’.> Another notable feature was a right of the parties to refer questions
of law to the tribunal for early determination (which could be done as an alternative to,
or in conjunction with, the exercise of the right to refer questions of law to the Singapore
High Court in proceedings governed by the AA).° Finally, consistent with Singapore domes-
tic court practice, the SIAC Domestic Arbitration Rules allowed a claimant or counter-
claimant to apply for a summary award ‘if a party considers that there is no valid defence to
its claim or any substantial part of its claim’.’
The SIAC Domestic Arbitration Rules were repealed on 1 July 2007 by Schedule 1 to the 18.05
2007 SIAC Rules. Although unnecessary, this statement of repeal is repeated in Schedule
2 to the 2010 and 2013 SIAC Rules.® Thus, since 1 July 2007 there is no longer a separate
body of rules for SIAC domestic arbitrations, with only one exception, which is considered
in part B of this chapter.

B. The SIAC Summary Award Procedure under the 2007,

2010, and 2013 SIAC Rules
There are different views as to whether a tribunal’s general power (and, indeed, duty) to 18.06
control and to conduct an arbitration efficiently and cost-effectively allows it to consider
applications for the summary disposal of a party’s defence.? Since 2002, SIAC has avoided
that debate by being one of the few institutions which expressly empowers a tribunal to do
so, first under the SIAC Domestic Arbitration Rules and now under Rule 29 of the 2016
J

3 SIAC Domestic Arbitration Rules (2002), Rule 1.2.

4 SIAC Domestic Arbitration Rules (2002), Rules 3 and 12.
5 SIAC Domestic Arbitration Rules (2002), Rule 17.
6 AA, s 45(1). The High Court cannot consider a question of law unless that is agreed by all parties to the
proceedings or the application is made with the permission of the tribunal, and the Court is satisfied that the
determination of the question is likely to save costs and the application is made without delay.
7 SIAC Domestic Arbitration Rules (2002), Rule 27.
8 SIAC Rules (2007), Sch 1, Art 1; SIAC Rules (2010 and 2013), Sch 2,Art 1.
9 G Born and K Beale, ‘Party Autonomy and Default Rules: Reframing the Debate Over Summary
Disposition in International Arbitration’ (2010) 21 ICC Bulletin 19, 29; DB King and JP Commission,
‘Summary Judgment in International Arbitration: The “Nay” Case’, paper presented at the ABA International
Law Spring 2010 Meeting, 2; A Raviv, ‘No More Excuses: Toward a Workable System ofDispositive Motions
in International Arbitration’ (2012) 28(3) Arb Intl 487; J Gill, ‘Applications for the Early Disposition of Claims
inArbitration Proceedings’ inAJvan den Berg (ed), JCCA Congre Series (Special
ss oftheNew York
Issue: 50Years
Conven (Kluwer Law International 2009) 512; CMouawad
tion) and E Silbert, ‘A Case forDispositive Motions
in International Commercial Arbitration’ (2015) 2(1) BCDR International Arbitration Review 77-97.

319
 SIAC Domestic Arbitration
isiaaeriamisa
sass enan in
SIAC Rules."® As a matter of Singapore law, an award can be rendered summarily if that is
agreed by the parties, including through their choice ofarbitration rules."
18.07 As already mentioned, the SIAC Domestic Arbitration Rules have been repealed. The 2007,
2010, and 2013 SIAC Rules, however, each provide in a schedule to those rules that the
summary award procedure previously used in domestic arbitrations will continue to apply
to cases in which the parties have expressly agreed to arbitrate under the SIAC Domestic
Arbitration Rules.
18.08 Specifically, the 2007, 2010, and 2013 SIAC Rules provide that if a claimant or counter-
claimant in an arbitration which is expressly subject to the SIAC Domestic Arbitration
Rules considers that there is no valid defence to its claim or counterclaim, or a substan-
tial part thereof, it may apply to the tribunal for a summary award within 21 days of the
expiry of the time limit determined by the tribunal for the filing of a defence to the claim or
counterclaim."
18.09 The summary award procedure in the SIAC Domestic Arbitration Rules is similar to the
summary judgment procedure available in Singapore court proceedings.'* Its purpose is to
allow a claimant to obtain a decision in its favour without going through a full arbitration if
there is no valid defence to some or all of its claim.
18.10 The application for a summary award must be submitted together with an ‘affidavit’ in
support.'4 The affidavit must state the full facts and grounds relied on by the claimant or
counter-claimant in support of its application.'> The SIAC Rules are silent as to whether the
affidavit should be accompanied by supporting documentation, although that is the usual
practice. The SIAC Rules also do not indicate who should attest the affidavit. Guidance may
be taken from Singapore court procedure, which allows the plaintiff or a duly authorized

'0 Other institutions that have a summary award procedure, or a similar procedure, include ICSID
(Arbitration Rules (2006), Arts 41(5) and (6)); JAMS (Comprehensive Arbitration Rules and Procedures
(2014), Rule 18); AAA (Commercial Arbitration Rules and Mediation Procedures (2013), R-33 and
Construction Industry Arbitration Rules and Mediation Procedures (2015), R-34; ICDR (Mediation and
Arbitration Rules (2014), Art 20.3).
"' Re An Arbitration Between Hainan Machinery Import and Export Corp and Donald & McArthy Pte Ltd
[1995] 3 SLR(R) 354. The Singapore High Court refused to set aside a default award issued under the CIETAC
rules, the terms of which allowed default awards. The High Court noted that the respondent had very little right
to criticize the conduct of the arbitration after electing not to participate.
'2 SIAC Rules (2010 and 2013), Sch 2, Art 3.1 provides that an application for a summary award can
be made ‘upon the expiry of the time limit for the filing of Statement of Claim, Statement of Defence and
Counterclaim under Rule 17 of these Rules, but not later than 21 days after the expiry’. While the language
could be clearer, this does not mean a claimant can seek a summary award merely upon filing its Statement of
Claim. It must wait until the expiry of the time set for the filing of the Statement of Defence and Counterclaim.
Indeed, it will not be until then that the claimant will be in a position to assess whether its opponent has a valid
defence. This interpretation is consistent with the SIAC Domestic Arbitration Rules (2002), Rule 27 on which
Sch 2, Art 3.1 of the 2010 and 2013 SIAC Rules is based, which provides that a summary award can only be
requested upon the expiry of the time allowed for the ‘filing of all case statements’ (ie including the statements
of the respondent's case and counterclaim pursuant to Rule 9.2). This is also the language used in Sch 1, Art 3.1
of the 2007 SIAC Rules.
'3 Rules of Court (Singapore), Order 14, Rule 1.
"4 SIAC Rules (2007), Sch 1, Art 3.2; SIAC Rules (2010 and 2013), Sch 2, Art 3.2. The use of the word
‘affidavit’ in the SIAC Rules reflects the Singapore court (and before that, the English court) origins of the sum-
mary award procedure.
'S SIAC Rules (2007), Sch 1, Art 3.2; SIAC Rules (2010 and 2013), Sch 2, Art 3.2.

320
 B. The SIAC Summary Award Procedure under the 2007, 2010, and 2013 SIAC Rules

representative acting on the plaintiff's behalf, which may include its legal counsel, to sign the
affidavic.'® Multiple affidavits may be filed."”
If arespondent wishes to contest a summary award application, it must file an ‘affidavit in 18.11
opposition within 21 days after being served with the claimant's application.'® In practice,
the affidavit in opposition should contain more than a bare denial of the claim. It should
articulate the defence clearly and concisely and note the facts relied upon in support.'9
The claimant may file a ‘reply affidavit’ within 14 days of receipt of the affidavit in oppos- 18.12
ition.”® The reply affidavit should respond to the arguments, facts, and evidence in the affi-
davit in opposition. No further affidavits may be filed by either party without leave of the
tribunal.?"
The tribunal has the power to extend the summary award procedural deadlines.?2 18.13
The 2007, 2010, and 2013 SIAC Rules suggest that an oral hearing should be conducted by 18.14
the tribunal before it rules on a summary award application. Specifically, the tribunal must
decide the matter ‘on hearing the application’.?3 Further, the tribunal has 21 days ‘after the
close of hearing’ to render a decision on a summary award application (unless otherwise
extended by the Registrar).” In any event, a hearing must be held if either party requests it.?5
On hearing the application, the tribunal has three options. It may: 18.15
(a) make an award summarily;
(b) make an order dismissing the application; or
(c) make an order requiring the respondent to provide security for the applicant's claim or
part of the claim.”®
The tribunal may decide to render a summary award if it determines ‘that there is no valid 18.16
defence to [the] claim or any substantial part of [the] claim’.?” This is a high threshold.
The application for a summary award will be dismissed if, in the words of one arbitral tribu- 18.17
nal, the respondent has a ‘bona fide and arguable’ defence.?8
If the application for a summary award is dismissed, the arbitration proceedings will con- 18.18
tinue.?? In appropriate circumstances, however, instead of dismissing the application

'6 GP Selvam (chief ed), Singapore Civil Procedure 2015 (Sweet 8& Maxwell Asia 2015) para 14/2/6.
7 Selvam, Singapore Civil Procedure (n 16) para 14/2/6.
'8 SIAC Rules (2007), Sch 1, Art 3.3; SLAC Rules (2010 and 2013), Sch 2, Art 3.3.
'9 Selvam, Singapore Civil Procedure (n 16) para 14/2/12.
20 SIAC Rules (2007), Sch 1, Art 3.3; SLAC Rules (2010 and 2013), Sch 2, Art 3.3.
21 SIAC Rules (2007), Sch 1, Art 3.3; SIAC Rules (2010 and 2013), Sch 2, Art 3.3.
22 SIAC Rules (2007), Rule 24.1(d); SIAC Rules (2010), Rule 24.1(c); SIAC Rules (2013), Rule 24(c).
23 SIAC Rules (2007), Sch 1, Art 3.4; SLAC Rules (2010 and 2013), Sch 2, Art 3.4.
24 SIAC Rules (2007), Sch 2, Art 3.5; SIAC Rules (2010), Sch 2, Art 3.5; SLAC Rules (2013), Rule 2.5, Sch
2, Art 3.5.
25 SIAC Rules (2007, 2010, and 2013), ett alii Gik aad
26 SIAC Rules (2007), Sch 1, Art 3.4; SIAC an , : A,
- SIACRules (2007), Sch 1, Art 3.1, and 3.4; SIAC Rules (2010 and 2013), Sch 2, Art 3.1 and 3.4.
28 Econ Piling Pte Ltd v Shanghai Tunnel Enginee Ltd (2011) 1 SLR 246. At paras 46 and 49, the
Coring
Singapore High Court noted the approach taken by an arbitrator appointed under the SLAC Domestic
Arbit Rulesratio n an appli
when determining n namely whether the respondentin
a summary award,
forcatio
the arbitration had ‘a bona fide and arguable’ defence to the application.
Sch 1, Art 3.8; SIAC Rules (2010 and 2013), Sch 2, Art 3.8.
29 SIAC Rules (2007),

321
 SIAC Domestic Arbitration
ne EE
outright, the tribunal may require the respondent to provide security for the applicant's
claim or part ofthe claim. Failure to provide such security may be additional grounds for
the tribunal to make a summary award in favour of the applicant.
18.19 A Singapore court may exercise a similar power to require a respondent to provide security
for aclaim when it has the ‘sense that although it cannot be said that the claimed defence is so
hopeless that, in truth, there is no defence, the overall impression is such that some demon-
stration of commitment on the part of the defendant to the claimed defence is called for’.*"
18.20 A SIAC tribunal has the authority to apportion the costs of the arbitration between the
parties in the summary award unless the parties have agreed otherwise.3* The tribunal also
has the authority to order that all or a part of the legal and other costs of a party be paid by
another party.33 Thus, a party which makes an inappropriate application for a summary
award may be ordered to bear the other party’s costs of the application.
18.21 The SIAC Rules apply to the preparation and issuance of a summary award. Thus, for
example, the tribunal must submit the award in draft form to the SIAC Registrar for scru-
tiny. The Registrar may suggest modifications in relation to the form of the award and draw
attention to points of substance.34 The award shall not be issued until the SIAC Registrar
approves it in relation to its form.> A party may subsequently request the tribunal to correct
minor errors in a summary award which are computational, clerical, or typographical in
nature within 30 days of receipt of the award.?¢ A tribunal may correct such errors on its own
initiative within the same time frame.37
18.22 Finally, only claimants and counter-claimants may apply for summary awards in arbitrations
expressly subject to the SIAC Domestic Arbitration Rules.** But that does not mean that
a respondent faced with an obviously defective claim in an arbitration is without options.
For example, if the claim is based on a non-existent or invalid arbitration agreement, the

30 SIAC Rules (2007), Sch 1, Art 3.4(c); SIAC Rules (2010 and 2013), Sch 2, Art 3.4(c).
31 Abdul Salam Asanaru Pillai (t/a South Kerala Cashew Exporters) v Nomanbhoy & Sons Pte Ltd {2007) 2
SLR(R) 856 (Singapore High Court) para 44;JPinsler SC, Principles ofCivil Procedure (Academy Publishing,
2012) para 8.015:
The defendant may not be able to raise a clear triable issue or the triable issue may not appear to be
completely genuine or there may be a concern that the defendant is not acting in good faith. In these
circumstances, the court may not be willing to grant summary judgment to the plaintiff because the
defendant does have at least a potential answer to the claim (even though it appears weak or possibly
false). As a matter of justice, the court may consider that the defendant should have the benefit of a
trial so that the issues may be fully adjudicated on all the evidence. However, the defendant would
be required to show his earnestness in defending the claim by providing appropriate security for the
plaintiff's claim.
32 SIAC Rules (2007), Rule 29.1 and Sch 1, Art 3.6; SIAC Rules (2010 and 2013), Rule 31.1 and Sch 2, Art
3.6. For a discussion on the SIAC costs of the arbitration, see Ch 15.
33 SIAC Rules (2007), Rule 31 and Sch 1, Art 3.6; SIAC Rules (2010 and 2013), Rule 33 and Sch 2, Art 3.6.
Fosie4 Rules (2007), Rule 27.1 and Sch 1, Art 3.7; SIAC Rules (2010 and 2013), Rule 28.2 and Sch 2,

foal Rules (2007), Rule 27.1 and Sch 1, Art 3; SIAC Rules (2010 and 2013), Rule 28.2 and Sch 2,

eh Rules (2007), Rule 28.1 and Sch 1, Art 3.7; SIAC Rules (2010 and 2013), Rule 29.1 and Sch 2,

os Rules (2007), Rule 28.2 and Sch 1, Art 3.7; SIAC Rules (2010 and 2013), Rule 29.2 and Sch 2,

38 SIAC Rules (2007), Sch 1, Art 3.1; SIAC Rules (2010 and 2013), Sch 2, Art 3.1,

322
 C. Domestic Arbitrations under the 2016 SIAC Rules

respondent can seek the early termination of the proceedings on jurisdictional grounds.*?
Further, a respondent can seek protection against the cost of defending a frivolous claim
through an application for security for costs.” A tribunal’s authority to control the conduct
of the proceedings may also allow it to grant an application to strike out a claim even when
the rules do not expressly authorize it to do so.‘

C. Domestic Arbitrations under the 2016 SIAC Rules

Unlike the 2007, 2010, and 2013 SIAC Rules, the 2016 SLAC Rules do not include a separ- 18.23
ate schedule to be used in cases in which the parties have expressly agreed to the application
of the SLAC Domestic Arbitration Rules.

This may be because SIAC no longer receives new cases in which the parties have agreed to 18.24
the SIAC Domestic Arbitration Rules, as those rules were repealed in July 2007.
Alternatively, a separate schedule for arbitrations subject to the SIAC Domestic Arbitration 18.25
Rules may have been considered unnecessary as the one feature of those rules incorporated
into the 2007, 2010, and 2013 SIAC Rules was the ability of a claimant or counter-claimant
to apply for a summary award as explained in part B of this chapter. That procedure is now
incorporated in the body of the 2016 SIAC Rules in the form of Rule 29—Early Dismissal
of Claims and Defences, which is available in all cases, domestic and international, to which
the 2016 SIAC Rules apply.
Nonetheless, the (theoretical) question remains as to how SIAC would treat a new arbitra- 18.26
tion which commences pursuant to an agreement which provides for the application of the
SIAC Domestic Arbitration Rules. Arguably, such a case should proceed pursuant to the
2013 SIAC Rules. Schedule 2 to the 2013 SIAC Rules provides that an agreement by parties
to the application of the SIAC Domestic Arbitration Rules shall be deemed to be an agree-
ment to arbitration under ‘these Rules’ (ie the 2013 SIAC Rules) and to ‘this Schedule’ (ie
Schedule 2 to the 2013 SIAC Rules).‘? That statement was not repealed by the 2016 SIAC
Rules and thus would appear to remain in force.

Pn A th A ET AD tH Li RES
38 Rules 7, 201 2013), Rule 25.1.
and 0
© SIACRules enon. Rule 24.1(m); SIAC Rules (2010), Rule 24.1(k); SIAC Rules (2013), Rule 24(k).
41 First Interim Award in Case 11413 (2010) 21 ICC Bulletin 34, in which the tribunal held that it had the
power togrant a motion todismiss a claim where it was‘crystal clear’ thataclaim hadnolegal basis.Thetribunal
see
held that this standard was not met with respect totheparticular claim in question. For further discussion,
Raviv, ‘No More Excuses’ (n 9).
42 SIAC Rules (2013), Sch 2, Art 2.

323
 19
SIAC INVESTMENT RULES

A. Introduction 19.03 3, Third-party funding—Rules 24, 33,

B. Key Provisions of the SIACIA Rules 19.13 ang... < , ben
ae 4, Early dismissal of claims
1. Scope of application—Introduction
and Rule 19.13 and defences—Rule 26 19.27
9: -alCohatitatinnial 5. Third party intervention—Rule 29 19.31
: ie 12,1 19.16 6. Confidentiality and
the tribunal—Rules 5 to 9 3 Hahdpaiency Reles7 aad SS 19.36

19.01 In 2017, SIAC released separate rules for investment arbitration: the SIAC Investment
Arbitration Rules (SIAC IA Rules).

19.02 This chapter addresses the new SIAC IA Rules, which entered into force on 1 January 2017.
The chapter begins, in part A, with an introduction to the SIAC IA Rules. Part B then exam-
ines the key provisions of the SIAC IA Rules in more detail. The SIAC IA Rules include some
40 rules and two schedules; our discussion in this chapter is limited to key provisions.

A. Introduction

19.03 The term ‘investment arbitration’ typically refers to arbitrations involving disputes between
foreign investors and a host State within the framework of either a treaty between the host
State and the investor's home State or an investment contract between the investor and the
host State. Investment arbitration is chosen as the dispute settlement mechanism in thousands
of treaties and investment contracts and leads to hundreds of cases per year between States and
investors.’ In the last several years, there has been an increase in the number of investment
arbitrations involving Asian parties.? Many East and South Asian States, including, to namea
few, Bangladesh, Cambodia, China, East Timor, India, Indonesia, Korea, Malaysia, Pakistan,
the Philippines, and Vietnam, have been respondents in investor-State cases.

' K-H Béckstiegel, ‘Commercial and Investment Arbitration: How Different Are They Today?’ (2012),
28(4) Arbitration International 577, 578.
? eg ICSID registered eight new UNCITRAL investment arbitrations and 47 new ICSID investment arbi-
trations in 2016, of which 8 per cent involved a party from Southeast Asia and 31 per cent from Eastern Europe
or Central Asia. ICSID Secretariat, “The ICSID Caseload—Statistics (Issue 2017-1)’, available at <https://icsid.
worldbank.org/en/Documents/resources/ICSID%20 Web%20Stats%202017-1%20(English)%20Final.
pdf (accessed 20 February 2017). See also UNCTAD, Investment Dispute Settlement Navigator, available at
<http://investmentpolicyhub.unctad.org/ISDS> (accessed 15 June 2017).
3 See eg UNCTAD, Investment Dispute Settlement Navigator, available at http://investmentpolicyhub.
unctad.org/ISDS (accessed 15 June 2017).

324
 A. Introduction

Historically, investment arbitrations, in Asia as in the rest of the world, have to a large extent 19.04
been administered by ICSID under the ICSID Rules or proceeded under the UNCITRAL
Rules, often administered by the Permanent Court ofArbitration. The Stockholm Chamber
of Commerce (SCC) has also heard a significant number of investment disputes—until
recently, under the same rules as it applied to commercial arbitrations.5
Recently, however, some arbitral institutions have introduced separate rules for investment 19.05
and commercial arbitrations.* This development represents an effort by those institutions
to attract investment disputes for resolution under their auspices. It is also a recognition
of several unique features of investment arbitration (as contrasted to commercial arbitra-
tion), including the involvement of state parties, with their own particular demands, and the
potential implication of important issues of public interest and public policy.’
Recognizing these differences and in order to make SIAC an attractive option for investment 19.06
arbitrations, SLAC introduced the SIAC IA Rules. SIAC, together with the SCC, is the first
major arbitration institution to offer rules for commercial arbitrations and specialized rules
for investment arbitrations.
The President of the SLAC Court of Arbitration notes that the new SIAC IA Rules: 19.07
contain significant modifications to the 2016 SIAC Rules to reflect the special features and
concerns arising in arbitration proceedings involving States, State-controlled entities and
intergovernmental organisations. Both States and investors alike can be confident that, in
resolving investment disputes under the SIAC IA Rules, they will be provided with a neutral,
balanced, transparent and efficient procedural framework that addresses issues that ordinarily
arise in international investment arbitration law.®
At a high level, there are three principal differences between the SIAC Rules and the SIAC 19.08
IA Rules. First, different time limits apply under the two sets of rules. SIAC has recognized
that investment arbitrations are generally large and complex, and States are subject to com-
plex internal decision-making processes, such that investment arbitrations may in practice
require additional time to reach resolution. Therefore, under the SIAC IA Rules, several key
time limits are longer than their equivalents in the SIAC Rules. For example, the time limit
for filing the Response to the Notice of Arbitration is fixed as 35 days, rather than 14 days
under the SIAC Rules.° In addition, the time limits for the challenge of arbitrators and for
|

4 As of 31 December 2013, 62 per cent of the total number of known investor-State arbitrations were
administered by ICSID, 28 per cent as UNCITRAL ad hoc arbitrations, 5 per cent by SCC and 5 per cent
by other institutions. See UNCTAD, ‘IIA Issues Note No 1 2014’, available at <http://unctad.org/en/
PublicationsLibrary/webdiaepcb2014d3_en.pdf> (accessed 20 February 2017).
5 See UNCTAD, ‘IIA Issues Note No 1 2014’, available at <http://unctad.org/en/PublicationsLibrary/
webdiaepcb20 14d3_en. (accessed 14 June 2017).
§ In addition to ret 17, the SCC also introduced a separate set of rules in Appendix III which is only
i to cases based on ‘a treaty providing for arbitration of disputes between an investor and a state’. The
2017 SCC Rules entered into force on the same day as the new SIAC IA Rules, ie 1 January 2017.
7 For more discussion on the differences and similarities between commercial and investment arbitrations
in , see eg K-H Béckstiegel, ‘Commercial and Investment Arbitration: How Different are they Today?’
(2012), 28(4) Arbitration International 577.
8 SIAC, ‘SIAC Announces Official Release of the SIAC Investment Arbitration Rules’, 30 December
2016, available at <http://www.siac.org.sg/images/stories/press_release/SIAC%20Announces%20
Official%20Release%200f% 20the%20SIAC%20Investment%20Arbitration%20Rules.pdf> (accessed
21 February 2017).
9 SIAC Rules (2016), Rule 4; SIAC IA Rules, Rule4.

325
 SIAC Investment Rules
ie i cles
filing objections to the jurisdiction of the tribunal are changed to 28 days, as compared to
14 days under the SIAC Rules.'? Time limits for decisions by the tribunal also are extended.
Under the SIAC IA Rules, a decision regarding an application for early dismissal shall be
made within 90 days instead of 60 days under the SIAC Rules, and the final award shall be
rendered within 90 days from the closure of the proceeding instead of 45 days under the
SIAC Rules."
19.09 Second, certain provisions contained in the SIAC Rules are omitted from the SIAC IA
Rules. For example, the rule on expedited procedure provides a faster procedure tailored to
disputes of lower value and less complexity.'? Since investment arbitrations rarely fall under
this category, there is no such provision in the SIAC IA Rules. Nor do the SIAC IA Rules
contain provisions on multiple contracts, joinder, or consolidation.'? These provisions are
considered useful in commercial arbitration. The analogical focus in investment arbitration,
however, is third party submissions, which has motivated the introduction of a new provi-
sion on third party submissions, discussed below.
19.10 Third, the new SIAC IA Rules contain a number of provisions that have no corresponding
provisions in the SIAC Rules and which seek to address the specific issues of investment
arbitrations. These include submissions by third parties; and discretionary publication of key
information relating to the dispute.
19.11 The new SIAC IA Rules also indicate that SIAC aims to maintain and further improve
efficiency in the investment arbitrations to be administered under its rules. For example,
to facilitate an efficient process, Rule 16.5 provides that the presiding arbitrator may
make procedural rulings alone. Furthermore, the SIAC IA Rules contain strict time lim-
its to avoid undue delay. Although these time limits are longer than those under the
SIAC Rules, as discussed above, they are shorter than their equivalents under the ICSID
Rules. For example, under Rule 4 of the ICSID Rules, if the parties cannot agree on the
method of constitution of the tribunal, either party after 90 days may request ICSID
to appoint the arbitrators not yet appointed. ICSID shall use its best efforts to comply
with the request within 30 days. One study shows that of all the newly registered ICSID
cases in 2012, it took an average of 220 days to constitute a tribunal, with the fastest
taking 91 days, and the slowest some 546 days.'* In contrast, Rules 6-9 of the SIAC IA
Rules provide that SIAC shall proceed with the appointment procedure if a sole arbitra-
tor has not been appointed within 42 days or a party-nominated arbitrator has not been
appointed within 35 days.
19.12 In addition, Rule 30 of the SIAC IA Rules provides that an award shall be submitted to the
Registrar of SIAC within 90 days from the closure of the proceedings. This time limit may
be extended pursuant to Rule 2.6 which states that ‘the Registrar may at any time extend
or abbreviate any time limits prescribed under these Rules’. In contrast, Rule 46 of the
ICSID Rules states that the award shall be rendered within 120 days from the closure of the

'0 SIAC Rules (2016), Rule 15; SIAC IA Rules, Rule 12.
"’ SIAC Rules (2016), Rules 29, 32; SIAC IA Rules, Rules 26, 30.
'2 See Chapter 6.
'3 See Chapters 7 and 8.
"* A Raviv, ‘Achieving a Faster ICSID’ in J Kalicki and A Joubin-Bret (eds), Reshaping the Investor-State
Dispute Settlement System (Brill 2015) 664. ae

326
 B. Key Provisions of the SIAC IA Rules

procedures, with the possibility for an extension. The average time for ICSID tribunals to
render an award has been about 400 days from the final hearing.’

B. Key Provisions of the SIAC IA Rules

1. Scope of application—Introduction and Rule 1
In their introduction, the SLAC IA Rules state: 19.13
The SIAC Investment Arbitration Rules have been developed with a view towards the issues
unique to international investment arbitration. These Rules may be agreed and applied in any
type of arbitration, the application of which shall not be subject to objective criteria, such as
the existence of a qualifying ‘investor or ‘investment’ or the presence of a State, State-con-
trolled entity or intergovernmental organisation, without prejudice to any requirements set
out in the underlying contract, treaty, statute or other instrument.'®

Thus, while the SIAC IA Rules have been tailored towards investment arbitrations, they 19.14
expressly provide that they may be agreed and applied in any type of arbitration. Their appli-
cation is not subject to objective criteria, such as that the dispute must relate to an ‘invest-
ment’. Despite reference to the fact that the SIAC IA Rules were developed ‘to be applied
by agreement in disputes involving a State, State-controlled entity or inter-governmental
organisation ’,'’ there is no requirement that the dispute actually involves a State, State-con-
trolled entity, or inter-governmental organization before the SIAC IA Rules apply.
This is different from ICSID, which limits the scope of its rules to ‘any legal dispute arising 19.15
directly out of an investment, between a Contracting State (or any constituent subdivision
or agency of a Contracting State designated to the Centre by that State) and a national of
another Contracting State, which the parties to the dispute consent in writing to submit to
the Centre’.'® In ICSID arbitrations, the claimant must therefore meet threshold conditions
regarding both the parties and the subject matter of the dispute (in addition to whatever
jurisdictional requirements exist in the instrument—treaty or contract—giving rise to the
substantive rights in issue). In contrast, the key threshold under the SIAC IA Rules is, similar
to commercial arbitrations, that the parties have agreed to arbitrate under these rules.

2. Constitution of the tribunal—Rules 5 to 9, 12, 13

Rules 5—9 of the SIAC IA Rules contain detailed provisions on the appointment of arbitra- 19.16
tors. These provisions are similar to Rules 9-12 of the SIAC Rules.
However, there are several notable differences. For example, under Rule 5.2 of the SIACIA 19.17
Rules, although the parties may agree that the tribunal shall be composed of any odd num-
ber of arbitrators, the default position is that the tribunal shall consist of three arbitrators,
unless the parties have agreed otherwise. The SIAC IA Rules also provide, in Rule 5, that
the Court has the ability to determine that the dispute warrants appointing a sole arbitrator,
giving due regard to any proposals by the parties, the complexity, the quantum involved

15 J Commission, ‘How Long is Too Long to Wait for an Award?’ in Global Arbitration Review, 18
February 2016.
16 SIA C Introductipara
IA Rules, on,ii.
7 SIAC IA Rules,Introduction para,i.
18 ICSID Convention,Art 25(1).

327
 SIAC Investment Rules
attains
sisal iat nines
or other relevant circumstances of the dispute. In contrast, the default position under the
SIAC Rules is the appointment of a sole arbitrator.'? Given the complexity and nature of
investment arbitration, this difference is expected and in line with other major investment
arbitration rules.?°

19.18 Under Rule 5.7 of the SIAC IA Rules, SIAC has introduced a new provision requiring that,
when the parties are of different nationalities, the Court shall appoint a sole arbitrator or a
presiding arbitrator of a different nationality than the parties, unless the parties have other-
wise agreed or unless the Court otherwise determines it to be appropriate having regard to
the circumstances of the case. This rule formalizes the existing SIAC practice under the SIAC
Rules and is also in line with other investment arbitration rules.?'
19.19 Rule 8 of the SIAC IA Rules introduces a list-procedure for the appointment of arbitrators
when the parties fail to reach an agreement on the constitution of the tribunal. The ICSID
and SCC Arbitration Rules do not contain a comparable list-procedure, but Rule 8 is similar
to the list-procedure in Art 8 of the UNCITRAL Rules. One difference between these two
list-procedures is that Rule 8(a) of the SIAC IA Rules gives the parties the opportunity to
provide their views on the qualifications of the arbitrators. Another difference is that Rule
8(b) of the SIAC IA Rules states that the Court shall communicate to the parties a list of at
least five potential arbitrators, while the minimum number of names under Art 8(2)(a) of
the UNCITRAL Rules is three.

19.20 Finally, the procedure for the challenge of arbitrators under the SIAC IA Rules, while similar
to the SIAC Rules, differs from the ICSID approach. Under the ICSID Rules, the tribunal
determines the challenge and in the meantime, the proceedings are suspended. However,
under the SIAC IA Rules, the challenge is determined by the Court and the proceedings
continue unless suspension is ordered by the Registrar.?? This rule seeks to avoid the use of
challenges to cause unnecessary delay (a subject of much debate in the context of challenges
to arbitrators in ICSID cases?3).

3. Third-party funding—Rules 24, 33, and 35

Rule 24. Unless otherwise agreed by the Parties, in addition to the other powers specified in
these Rules, and except as prohibited by the mandatory rules of law applicable to the arbitra-
tion, the Tribunal shall have the power to: [... ]
|. order the disclosure of the existence of a Party's third-party funding arrangement and/or
the identity of the third-party funder and, where appropriate, details of the third-party
funder’s interest in the outcome of the proceedings, and/or whether or not the third-party
funder has committed to undertake adverse costs liability; [... ]

'9 See Chapter 8.

20 cf Art 37(2)(b) of the ICSID Convention; Art 2(2) of the SCC Rules Appendix III; Art 7(1) of the
UNCITRAL Rules,
21 See Chapter 8; cf Art 39 of the ICSID Convention; Art 17(6) of the SCC Arbitration Rules; Art 6(7) of
the UNCITRAL Rules.
22 cf ICSID Convention, Arts 57-58, Rule 9 of the ICSID Rules, and Rules 12—13 of the SIAC IA Rules.
23 See eg S Luttrell, ‘Testing the ICSID Framework for Arbitrator Challenges’, ICSID Review, Vol 31, No
3 (2016), 597-621, at [610-11]; K Daele, ‘Chapter 2: Making a Challenge’ in Challenge and i
ofArbitrators in International Arbitration, International Arbitration Law Library, Volume 24 (Kluwer Law
International 2012) 65-117, at [10205].

328
 B. Key Provisions of the SIAC IA Rules

Rule 33.1. Unless otherwise agreed by the Parties, the Tribunal shall specify in the Award the total
amount of the costs of the arbitration. Unless otherwise agreed by the Parties, the Tribunal shall
determine in the Award the apportionment of the costs of the arbitration among the Parties. The
Tribunal may take into account any third-party funding arrangements in apportioning the costs
of the arbitration.
Rule 35. The Tribunal shall have the authority to order in its Award that all or a part of the legal
or other costs of a Party be paid by another Party. The Tribunal may take into account any third-
party funding arrangements in ordering in its Award that all or a part of the legal or other costs of
a Party be paid by another Party.
Third-party funding—the financing by a third-party of the costs of dispute resolution proceed- 19.21
ings in exchange for a financial return—is used frequently in international arbitration in sev-
eral jurisdictions, notably in many international arbitration centres such as London, New York,
Paris, and Geneva.
Third-party funding historically has been prohibited in some jurisdictions under the com- 19.22
mon law doctrines of maintenance and champerty. In England and Wales, the criminal and
tortious offences of maintenance and champerty were abolished (save where the relevant con-
tract is contrary to public policy or otherwise illegal) under the Criminal Law Act 1967. In
other common law jurisdictions, such as Singapore and Hong Kong, third-party funding has
remained generally prohibited under these doctrines until more recently. In March 2017, the
Civil Law (Amendment) Act and associated Regulations entered into force in Singapore.”
They provide: (a) for the abolition of the torts of maintenance and champerty,”> and (6)
that third-party funding agreements with qualifying third-party funders in relation to inter-
national arbitration and related court or mediation proceedings are not illegal or contrary
to public policy.’ Similarly, in June 2017, Hong Kong passed legislation providing that the
common law doctrines of maintenance and champerty do not apply to third-party funding
of arbitration.’
The SIAC IA Rules are the first rules of any major arbitral institution expressly to address 19.23
third-party funding.
Under Rule 24 (1), unless otherwise agreed by the parties or prohibited by mandatory rules of 19.24
law applicable to the arbitration, the tribunal has the express power to order the disclosure of
the existence of third-party funding arrangements and/or the identity of the funder, and/or
(where appropriate) details of the third-party funder’s interest in the outcome of the proceed-
ings and/or whether the funder has committed to undertake adverse costs liability. This is
consistent with a study conducted by Queen Mary University of London which showed sig-
nificant support for disclosure of the use of third-party funding (76 per cent) and the identity

24 Singapore Civil Law (Amendment) Act 2017 and Civil Law (Third-Party Funding) Regulations 2017.
See also Legal Profession (Professional Conduct) (Amendment) Rules 2017.
25 Singapore Civil Law (Amendment) Act 2017, section 2 (new section 5A of the Civil Law Act).
26 Singapore Civil Law (Amendment) Act 2017, section 2 (new section 5B of the Civil Law Act);Civil Law
(Third-Party Funding) Regulations 2017 (stipulating the definition of ‘prescribed dispute resolution proceed-
and ‘qualifying Third-Party Funder’ for the purposes ofthe Act).
Hong Kong Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Bill 2016, Arts
to do sointhe
98K and 98L. Atthe time of writing, thelegislation has not entered into force butisexpected
course of 2017.

329
 SIAC Investment Rules
__—E—E—eeeeee—eE EE
ICSID
of the funder (63 per cent).”8 This position is also in line with decisions by some
tribunals that have ordered such disclosure based on the tribunals’ inherent power to do so.”
19.25 While Rule 24(1) does not expressly provide that the tribunal has the power to order whole-
sale disclosure of the funding agreement or other of its terms, it may be arguable that the
tribunal has that power under its authority to ‘order the disclosure of ... details of the third-
party funder’s interest in the outcome of the proceedings’. The SIAC IA Rules do not define
‘funding arrangement ora third-party funder’s ‘interest’. (There is a separate question about
whether disclosure of the terms of the funding agreement, as opposed to the fact of its exist-
ence and the identity of the funder, could serve any useful purpose in a particular case. The
identity of the funder may be relevant to a complete conflicts analysis and the fact of funding
may, in a particular case, be relevant to liability for adverse costs.)
19.26 Under Rules 33.1 and 35, the tribunal may take third-party funding arrangements into
account when apportioning the costs of the arbitration. It should be noted that the draft
version of the SIAC IA Rules, which was circulated for public consultation in 2016, also
included a provision under which the tribunal could make a cost award against a third-party
funder, if appropriate.3° No such provision was included in the final version of the rules.
4, Early dismissal of claims and defences—Rule 26

Rule 26.1. A Party may apply to the Tribunal for the early dismissal of a claim or defence on
the basis that:
a. aclaim or defence is manifestly without legal merit;
b. aclaim or defence is manifestly outside the jurisdiction of the Tribunal; or
c. aclaim or defence is manifestly inadmissible. ... ]
Rule 26.4. If the application is allowed to proceed, the Tribunal shall make an order or Award
on the application, with reasons, which may be in summary form. The order or Award shall
be made within 90 days of the date of filing of the application, unless, in exceptional circum-
stances, the Registrar extends the time.
19.27 The introduction of the early dismissal rule was one of the principal changes in the 2016
SIAC Rules. The early dismissal rule in the SIAC IA Rules mirrors closely its equivalent in
the 2016 SIAC Rules, with two notable differences.?"
19.28 First, Rule 26.1(c) of the SIAC IA Rules provides an additional, third, ground for early dis-
missal. In addition to early dismissal based on manifest lack of jurisdiction and legal merit, a
party may apply for the early dismissal of a claim or defence on the basis that it is ‘manifestly
inadmissible’. While the terms ‘admissibility’ and ‘jurisdiction’ are often used interchange-
ably in investment arbitration, there are important distinctions between them. As articu-
lated by Keith Highet in his dissent in Waste Management, Inc v United Mexican States:

28 Queen Mary University of London's School of International Arbitration and White & Case, ‘2015
International Arbitration Survey: Improvements and Innovations in International Arbitration’, available at
<http://www.arbitration.qmul.ac.uk/research/2015/> (accessed 24 February 2017). However, it should be
noted that 71 per cent opposed mandatory disclosure of the full terms of the funding agreement.
29 See eg Muhammet Cap & Sehil Insaat Endustri ve Ticaret Ltd Sti v Turkmenistan (\CSID Case No ARB/12/
6), Procedural Order No 3, 12 June 2015,
30 SIAC, ‘Public Consultation on Draft SIAC Investment Arbitration Rules’, 1 February 2016, Rule 34,
available at <http://siac.org.sg/images/stories/press_release/Public%20Consultation%200n%20Draft%20
SIAC%20Investment%20Arbitration%20Rules_1 February2016.pdf> (accessed 23 February 2017).
31 See Chapter 11.

330
 B. Key Provisions of the SIAC IA Rules

International decisions are replete with fine distinctions between jurisdiction and admissibil-
ity. For the purpose of the present proceedings it will suffice to observe that lack of jurisdiction
refers to the jurisdiction of the Tribunal and inadmissibility refers to the admissibility of the
case...

... Jurisdiction is the power of the tribunal to hear the case; admissibility is whether the case
itself is defective—whether it is appropriate for the tribunal to hear it... 32

Thus, the relevant question is whether the objections aim at the tribunal (jurisdiction) orthe 19.29
claim (admissibility).33 (The latter may more readily be cured.) Recognizing this distinction,
the SIAC IA Rules expressly allow for objections based on admissibility as a separate ground.
Second, the time limit for the tribunal’s order or award is extended from 60 days from 19.30
the date of filing of the application under the SIAC Rules to 90 days under the SIAC IA
Rules. This is in line with the general adjustments of the time limits under the SIAC IA
Rules as compared to the SIAC Rules.*4 The Registrar can extend the time in exceptional
circumstances.

5. Third party intervention—Rule 29

Rule 29.1. By written notice to the Registrar and the Parties, a Non-disputing Contracting
Party may make written submissions to the Tribunal, but only on a question of treaty inter-
pretation that is directly relevant to the dispute. The Tribunal may also, after considering the
views of the Parties and having regard to the circumstances of the case, invite written submis-
sions from a Non-disputing Contracting Party under this Rule 29.1.
Rule 29.2. By written notice to the Registrar and the Parties, a Non-disputing Contracting
Party or Non-disputing Party may apply to the Tribunal for the right to make written sub-
missions regarding a matter within the scope of the dispute. The Tribunal may also, after
considering the views of the Parties and having regard to the circumstances of the case, invite
written submissions from a Non-disputing Contracting Party or Non-disputing Party under
this Rule 29.2.
Rule 29.3. In determining whether to allow an application under Rule 29.2 to proceed, the
Tribunal shall consider the views of the Parties and, among other things, the extent to which:
(a) the Non-disputing Contracting Party’s or Non-disputing Party's written submissions
would assist the Tribunal in the determination of a factual or legal issue related to the pro-
ceedings by bringing a perspective, particular knowledge, or insight that is different from
that of the Parties;
(b) the Non-disputing Contracting Party’s or Non-disputing Party’s written submissions
would only address a matter within the scope of the dispute;
(c) the Non-disputing Contracting Party or Non-disputing Party has a sufficient interest in
the arbitral proceedings and/or any other related proceedings; and
(d) allowing the written submissions would violate the Parties’ right to confidentiality.
Rule 29.4. Any Non-disputing Contracting Party or Non-disputing Party that files any writ-
ten submissions under this Rule 29 shall be deemed to have consented to administration by
SIAC in accordance with these Rules and submitted to the authority of the Tribunal.

32 Waste Management, Inc v United Mexican States, (ICSID Case No ARB(AF)/98/2), Dissenting Opinion
Keith Highet, 57, 58.
* See A star diaition“The Question of Admissibility of Claims in Investment Treaty Arbitration,’ Kluwer
Arbitr on
3 February
Blog, ati 2010.
#4 See Part A above.
331
 SIAC Investment Rules
a sea Taner epene nec ISD ER
Rule 29.5. The Tribunal may, where appropriate, determine the form and content ofany writ-
ten submissions under this Rule 29. The Parties shall have the right to respond to such written
submissions.
Rule 29.6. The Tribunal shall decide which further written submissions shall be required from
a Non-disputing Contracting Party or Non-disputing Party. The Tribunal shall fix the periods
of time for communicating such written submissions.
Rule 29.7. The Tribunal may, if either Party so requests or the Tribunal so decides, hold a
hearing for a Non-disputing Contracting Party or Non-disputing Party to elaborate on or be
examined on its written submissions.
Rule 29.8. The Tribunal may order that a Non-disputing Contracting Party or Non-
disputing Party be provided with access to documents related to the proceedings, includ-
ing submissions, evidence, orders, decisions, Awards and any other documents produced
by the Parties or any Non-disputing Contracting Party or Non-disputing Party as may
be necessary for its participation in the arbitration. The Tribunal shall take appropriate
measures to safeguard the confidentiality of information related to the proceedings as set
out in Rule 37.
Rule 29.9. The Tribunal shall take reasonable steps to ensure, with respect to all submis-
sions under this Rule 29, that the submissions do not unreasonably disrupt the arbitration or
unduly burden or unfairly prejudice any of the Parties.
Rule 29.10. The Tribunal may refer to and rely on a Non-disputing Contracting Party's and/or
Non-disputing Party’s submissions in its orders, decisions and Awards.
19.31 Investment arbitration often involves issues of public interest and public policy.> Investment
arbitration tribunals historically have taken a restrictive position and have refused to allow
third-party participation in the proceedings. However, in recent years, there has been some-
thing of a backlash, and corresponding movement in some quarters in favour of allowing
third parties (such as other non-party States and NGOs) to contribute to investment arbi-
tration proceedings.?¢ In response, the SIAC IA Rules and some other major sets of arbitral
rules have introduced provisions dealing with submissions by non-parties to the arbitration
proceedings.
19.32 The SIAC IA Rules on third-party intervention are relatively similar to other rules such
as Rule 37 of the ICSID Arbitration Rules, Articles 4-5 of the UNCITRAL Rules on
‘Transparency in Treaty-based Investor-State Arbitration and Articles 3-4 of Appendix III
to the SCC Rules (which rules are also similar to each other). However, there are some dif-
ferences. For example, under Rule 29.2 of the SIAC IA Rules, the tribunal may also, having
regard to the views of the parties and the circumstances of the case, invite written submis-
sions from a Non-disputing Contracting party or a Non-disputing Party. Under Rule 1.5,
a ‘Non-disputing Contracting Party’ is defined as a party to a treaty pursuant to which the
dispute has been referred to arbitration and which is not a party to the arbitration. A ‘Non-
disputing Party’ is defined as a person or entity that is neither a party to the arbitration nora
party to a treaty pursuant to which the dispute has been referred to arbitration in accordance
with these rules.

35 E Levine, ‘Amicus Curiae in International Investment Arbitration: The Implications of an Increase in

Third-Party Participation’ (2011), 29(1) Berkeley Journal of International Law 208.
36 E Levine, ‘Amicus Curiae in International Investment Arbitration: The Implications of an Increase in
Third-Party Participation’ (2011), 29(1) Berkeley Journal of International Law 208. See generallyA Ross, ‘Is it
Time to End Confidentiality by Default?’ in Global Arbitration Review, 16 June 2017.

332
 B. Key Provisions of the SIAC IA Rules

A ‘Non-disputing Contracting Party —but not a ‘Non-disputing Party—has a prima facie 19.33
right under Rule 29.1 to make submissions to the tribunal, but only on questions of treaty
interpretation that are directly relevant to the dispute.3” Other written submissions regarding
a matter within the scope ofthe dispute, whether from a ‘Non-disputing Contracting Party’
or a Non-disputing Party’, require permission from the tribunal under Rule 29.2-29.3.
It should also be noted that Rule 29.3(c) of the SIAC IA Rules refers to third parties having 19.34
‘sufficient interest’ in the arbitral proceedings and/or any other related proceedings, which
suggests a lower threshold than the ‘significant interest’ required under Rule 37(2)(c) of the
ICSID Rules and Art 4(3)(a) of the UNCITRAL Rules on Transparency in Treaty-based
Investor-State Arbitration.

A practical issue third parties may face is obtaining information about the proceedings in the 19.35
first place. As discussed below, confidentiality is still the default rule under the SIAC IA Rules
and only limited information is published in accordance with Rules 37-38.

6. Confidentiality and transparency—Rules 37 and 38

Rule 38.1. Where the Parties have agreed to arbitration in accordance with these Rules, the
Parties shall be deemed to have agreed that SIAC may publish information on proceedings
conducted under these Rules.
Rule 38.2. Information that may be published pursuant to Rule 38.1 shall be limited to the
nationality of the Parties, the identity and nationality of the members of the Tribunal, the
treaty, statute or other instrument under which the arbitration has been commenced, if any,
the date of the commencement of the arbitration and whether the proceedings are ongoing
or have been terminated. SIAC may also publish redacted excerpts of the reasoning of the
Tribunal and redacted decisions by the Court on challenges to arbitrators.
Rule 38.3. With the express consent of the Parties, SIAC may publish the identity of the
Parties, the contract under which the arbitration has been commenced, if any, the identity of
the Parties’ counsel, the economic sector and industry to which the dispute relates, the total
sum in dispute, details of any procedural steps that have been taken in the proceedings and any
orders, directions, decisions and Awards issued in the proceedings.
The tension between confidentiality and transparency is often debated in the context of 19.36
investment arbitration.2® The SIAC IA Rules favour confidentiality. Unlike the recently
adopted UNCITRAL Rules on Transparency in Treaty-based Investor-State Arbitration,
which provide for transparency save in exceptional circumstances, confidentiality is the
default position under the SIAC IA Rules.
The provision on confidentiality, Rule 37 of the SIAC IA Rules, is very similar to Rule 39 19.37
of the SIAC Rules.?? However, the introduction of Rule 38 on publication gives SIAC the

37 See also North American Free Trade Agreement, Art 1128 (which provides that a ‘Party’ to NAFTA ‘may
make submissions to a Tribunal on a question of interpretation of this Agreement’ upon giving ‘written notice
to the disputing parties’. No corresponding right is given to NAFTA non-parties); 2012 US Model Bilateral
Investment Treaty, Art 28(2) (‘The non-disputing Party may make oral and written submissions to the tribunal
regarding the interpretation of this Treaty.’).
See generallyARoss, ‘Is itTime voyaeConfidentiality by Default?’ in Global Arbitration Review, 16 June
; W Kenny, ‘Transparencyin Investor State Arbitration’ (2016) Vol 33(5)JIntl Arb 471; K Béckstiegel,
elem sae Aca How Diffe they Today?: The Lalive Lecture
arerent 2012’ (2012) Vol
28(4) Arbitration Internationa 577 at [586-87].
l
39 See Chapter 16.

333
 SIAC Investment Rules

right to publish certain key information regarding the dispute. The information that may be
published is limited to:
(a) the nationality of the parties,
(b) the identity and nationality of the members of the tribunal,
(c) the treaty, statute, or other instrument under which the arbitration has been com-
menced, if any,
(d) the date of the commencement of the arbitration,
(ce) whether the proceedings are ongoing or have been terminated,
(f) redacted excerpts of the reasoning of the tribunal and redacted decisions by the court on
challenges to arbitrators.
19.38 This approach is broadly consistent with the views reflected in a Queen Mary University of
London study, in which 64 per cent indicated that institutions should publish awards in a
redacted form and/or as summaries, but only 19 per cent indicated institutions should pub-
lish full awards.4°

rt
“° Queen Mary University of London's School of International Arbitration and White
& Case, ‘2015
International Arbitration Survey: Improvements and Innovations in International Arbitra
tion’, available at
<hetp://www.arbitration.qmul.ac.uk/research/2015/> (accessed 24 February 2017).

334
 APPENDIX 1

Arbitration Rules of the Singapore International Arbitration Centre

SIAC Rules (6th Edition, 1 August 2016)

1 Scope of Application and Interpretation

Where the parties have agreed to refer their disputes to SIAC for arbitration or to arbitration in accord- 1.1
ance with the SIAC Rules, the parties shall be deemed to have agreed that the arbitration shall be con-
ducted pursuant to and administered by SIAC in accordance with these Rules.
These Rules shall come into force on 1 August 2016 and, unless otherwise agreed by the parties, shall apply 1.2
to any arbitration which is commenced on or after that date.
In these Rules: 1.3
“Award” includes a partial, interim or final award and an award of an Emergency Arbitrator;
“Committee of the Court” means a committee consisting of not less than two members of the Court
appointed by the President (which may include the President);
“Court” means the Court of Arbitration of SIAC and includes a Committee of the Court;
“Emergency Arbitrator” means an arbitrator appointed in accordance with paragraph 3 of Schedule 1;
“Practice Notes” mean the guidelines published by the Registrar from time to time to supplement,
regulate and implement these Rules;
“President” means the President of the Court and includes any Vice President and the Registrar;
“Registrar” means the Registrar of the Court and includes any Deputy Registrar;
“Rules” means the Arbitration Rules of the Singapore International Arbitration Centre (6th Edition,
1 August 2016);
“SIAC” means the Singapore International Arbitration Centre; and
“Tribunal” includes a sole arbitrator or all the arbitrators where more than one arbitrator is appointed.
Any pronoun in these Rules shall be understood to be gender- neutral. Any singular noun shall be
understood to refer to the plural in the appropriate circumstances.

2 Notice and Calculation of Periods of Time

For the purposes of these Rules, any notice, communication or proposal shall be in writing. Any such 2.1
notice, communication or proposal may be delivered by hand, registered post or courier service, or trans-
mitted by any form of electronic communication (including electronic mail and facsimile), or delivered
by any other appropriate means that provides a record of its delivery. Any notice, communication or
proposal shall be deemed to have been received if it is delivered: (i) to the addressee personally or to
its authorised representative; (ii) to the addressee’s habitual residence, place of business or designated
address; (iii) to any address agreed by the parties; (iv) according to the practice of the parties in prior
dealings; or (v) if, after reasonable efforts, none of these can be found, then at the addressee’s last-known
residence or place of business.
Any notice, communication or proposal shall be deemed to have been received on the day it is delivered 2.2
in accordance with Rule 2.1.
For the purpose of calculating any period of time under these Rules, such period shall begin to run on 2.3
the day following the day when a notice, communication or proposal is deemed to have been received.
Unless the Registrar or the Tribunal determines otherwise, any period of time under these Rules is to be
calculated in accordance with Singapore Standard Time (GMT + 8).
Any non-business days atthe place ofreceipt shall beincluded in calculating any period of time under 2.4
these Rules. Ifthelast day of any period of time under these Rules isnot a business day at the place of
receipt inaccordance with Rule 2.1, theperiod isextended until thefirst business day which follows.

335
 Appendix 1: 2016 SIAC Rules
i eee

ao The parties shall file with the Registrar a copy of any notice, communication or proposal concerning the
arbitral proceedings.
2.6 Except as provided in these Rules, the Registrar may at any time extend or abbreviate any time limits
prescribed under these Rules.
3 Notice of Arbitration
3.1 A party wishing to commence an arbitration under these Rules (the “Claimant”) shall file with the
Registrar a Notice of Arbitration which shall include:
a. ademand that the dispute be referred to arbitration;
b. thenames, addresses, telephone numbers, facsimile numbers and electronic mail addresses, if known,
of the parties to the arbitration and their representatives, if any;
c. areference to the arbitration agreement invoked and a copy of the arbitration agreement;
d. areference to the contract or other instrument (e.g. investment treaty) out of or in relation to which
the dispute arises and, where possible, a copy of the contract or other instrument;
e. abrief statement describing the nature and circumstances of the dispute, specifying the relief claimed
and, where possible, an initial quantification of the claim amount;
f, astatement of any matters which the parties have previously agreed as to the conduct of the arbitra-
tion or with respect to which the Claimant wishes to make a proposal;
g. aproposal for the number of arbitrators if not specified in the arbitration agreement;
h. unless otherwise agreed by the parties, the nomination of an arbitrator if the arbitration agreement
provides for three arbitrators, or a proposal for a sole arbitrator if the arbitration agreement provides
for a sole arbitrator;
i, any commentas to the applicable rules of law;
j.. any comment as to the language of the arbitration; and
k. payment of the requisite filing fee under these Rules.
3.2 The Notice of Arbitration may also include the Statement of Claim referred to in Rule 20.2.
3.3 The date of receipt of the complete Notice of Arbitration by the Registrar shall be deemed to be the date
of commencement of the arbitration. For the avoidance of doubt, the Notice of Arbitration is deemed
to be complete when all the requirements of Rule 3.1 and Rule 6.1(b) (if applicable) are fulfilled or when
the Registrar determines that there has been substantial compliance with such requirements. SIAC shall
notify the parties of the commencement of the arbitration.
3.4 The Claimant shall, at the same time as it files the Notice of Arbitration with the Registrar, send a copy of
the Notice of Arbitration to the Respondent, and shall notify the Registrar that it has done so, specifying
the mode of service employed and the date of service.

4 Response to the Notice of Arbitration

4.1 The Respondent shall file a Response with the Registrar within 14 days of receipt of the Notice of
Arbitration. The Response shall include:
a. confirmation or denial of all or part of the claims, including, where possible, any plea that the
Tribunal lacks jurisdiction;
b. a brief statement describing the nature and circumstances of any counterclaim, specifying the relief
claimed and, where possible, an initial quantification of the counterclaim amount;
¢. any comment in response to any statements contained in the Notice of Arbitration under Rule 3.1 or
any comment with respect to the matters covered in such Rule;
d. unless otherwise agreed by the parties, the nomination of an arbitrator if the arbitration agreement
provides for three arbitrators or, if the arbitration agreement provides for a sole arbitrator, comments
on the Claimant’s proposal for a sole arbitrator or a counter-proposal; and
e. payment of the requisite filing fee under these Rules for any counterclaim.
4.2 The Response may also include the Statement of Defence and a Statement of Counterclaim, as referred
to in Rule 20.3 and Rule 20.4.
4.3 The Respondent shall, at the same time as it files the Response with the Registrar, send a copy of the
Response to the Claimant, and shall notify the Registrar that it has done so, specifying the mode of service
employed and the date of service.

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5 Expedited Procedure
Prior to the constitution of the Tribunal, a party may file an application with the Registrar for the arbitral 5.1
proceedings to be conducted in accordance with the Expedited Procedure under this Rule, provided that
any of the following criteria is satisfied:
a. the amount in dispute does not exceed the equivalent amount of $$6,000,000, representing the
aggregate of the claim, counterclaim and any defence of set-off;
b. the parties so agree; or
c. in cases of exceptional urgency.
The party applying for the arbitral proceedings to be conducted in accordance with the Expedited
Procedure under this Rule 5.1 shall, at the same time as it files an application for the proceedings to be
conducted in accordance with the Expedited Procedure with the Registrar, send a copy of the applica-
tion to the other party and shall notify the Registrar that it has done so, specifying the mode of service
employed and the date of service.
Where a party has filed an application with the Registrar under Rule 5.1, and where the President deter- 5.2
mines, after considering the views of the parties, and having regard to the circumstances of the case, that
the arbitral proceedings shall be conducted in accordance with the Expedited Procedure, the following
procedure shall apply:
a. the Registrar may abbreviate any time limits under these Rules;
b. the case shall be referred to a sole arbitrator, unless the President determines otherwise;
c. the Tribunal may, in consultation with the parties, decide if the dispute is to be decided on the basis of
documentary evidence only, or if a hearing is required for the examination of any witness and expert
witness as well as for any oral argument;
d. the final Award shall be made within six months from the date when the Tribunal is consti-
tuted unless, in exceptional circumstances, the Registrar extends the time for making such final
Award; and
e. the Tribunal may state the reasons upon which the final Award is based in summary form, unless the
parties have agreed that no reasons are to be given.
By agreeing to arbitration under these Rules, the parties agree that, where arbitral proceedings are con- 2.3
ducted in accordance with the Expedited Procedure under this Rule 5, the rules and procedures set forth
in Rule 5.2 shall apply even in cases where the arbitration agreement contains contrary terms.
Upon application by a party, and after giving the parties the opportunity to be heard, the Tribunal may, 5.4
having regard to any further information as may subsequently become available, and in consultation with
the Registrar, order that the arbitral proceedings shall no longer be conducted in accordance with the
Expedited Procedure. Where the Tribunal decides to grant an application under this Rule 5.4, the arbitra-
tion shall continue to be conducted by the same Tribunal that was constituted to conduct the arbitration
in accordance with the Expedited Procedure. ,

6 Multiple Contracts
Where there are disputes arising out of or in connection with more than one contract, the Claimant may: 6.1
a. filea Notice of Arbitration in respect of each arbitration agreement invoked and concurrently submit
an application to consolidate the arbitrations pursuant to Rule 8.1; or
b. file a single Notice of Arbitration in respect of all the arbitration agreements invoked which shall
include a statement identifying each contract and arbitration agreement invoked and a description
of how the applicable criteria under Rule 8.1 are satisfied, The Claimant shall be deemed to have
commenced multiple arbitrations, one in respect of each arbitration agreement invoked, and the
Notice of Arbitration under this Rule 6.1(b) shall be deemed to be an application to consolidate all
such arbitrations pursuant to Rule 8.1.
the Claimant has filed two or more Notices ofArbitration pursuant to Rule 6.1(a), the Registrar
Where 6.2
shall accept payment of a single filing fee under these Rules forallthearbitrations sought to be consoli-
dated. Where the Court rejects the application for consolidation, in whole orin part, the Claimant shall
be required to make payment oftherequisite filing fee under these Rules inrespect of each arbitration
chat has not been consolidated.
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_—E—E—eeEee——eEee———————————————
i

6.3 Where the Claimant has filed a single Notice of Arbitration pursuant to Rule 6.1(b) and the Court rejects
the application for consolidation, in whole or in part, it shall file a Notice of Arbitration in respect of each
arbitration that has not been consolidated, and the Claimant shall be required to make payment of the
requisite filing fee under these Rules in respect of each arbitration that has not been consolidated.

7 Joinder of Additional Parties

hal Prior to the constitution of the Tribunal, a party or non-party to the arbitration may file an application
with the Registrar for one or more additional parties to be joined in an arbitration pending under these
Rules as a Claimant or a Respondent, provided that any of the following criteria is satisfied:
a. the additional party to be joined is prima facie bound by the arbitration agreement; or
b. all parties, including the additional party to be joined, have consented to the joinder of the
additional party.
1: An application for joinder under Rule 7.1 shall include:
a. thecase reference number of the pending arbitration;
b. thenames, addresses, telephone numbers, facsimile numbers and electronic mail addresses, ifknown,
of all parties, including the additional party to be joined, and their representatives, if any, and any
arbitrators who have been nominated or appointed in the pending arbitration;
c. whether the additional party is to be joined as a Claimant or a Respondent;
the information specified in Rule 3.1(c) and Rule 3.1(d);
e. if the application is being made under Rule 7.1(b), identification of the relevant agreement and,
where possible, a copy of such agreement; and
f, abrief statement of the facts and legal basis supporting the application.
The application for joinder is deemed to be complete when all the requirements of this Rule 7.2 are
fulfilled or when the Registrar determines that there has been substantial compliance with such require-
ments. SIAC shall notify all parties, including the additional party to be joined, when the application for
joinder is complete.
re The party or non-party applying for joinder under Rule 7.1 shall, at the same time as it files an application
for joinder with the Registrar, send a copy of the application to all parties, including the additional party
to be joined, and shall notify the Registrar that it has done so, specifying the mode of service employed
and the date of service.
7.4 The Court shall, after considering the views of all parties, including the additional party to be joined, and
having regard to the circumstances of the case, decide whether to grant, in whole or in part, any applica-
tion for joinder under Rule 7.1. The Court’s decision to grant an application for joinder under this Rule
7.4 is without prejudice to the Tribunal’s power to subsequently decide any question as to its jurisdiction
arising from such decision. The Court’s decision to reject an application for joinder under this Rule 7.4,
in whole or in part, is without prejudice to any party's or non-party’s right to apply to the Tribunal for
joinder pursuant to Rule 7.8.
io Where an application for joinder is granted under Rule 7.4, the date of receipt of the complete appli-
cation for joinder shall be deemed to be the date of commencement of the arbitration in respect of the
additional party.
7.6 Where an application for joinder is granted under Rule 7.4, the Court may revoke the appointment of
any arbitrators appointed prior to the decision on joinder. Unless otherwise agreed by all parties, includ-
ing the additional party joined, Rule 9 to Rule 12 shall apply as appropriate, and the respective timelines
thereunder shall run from the date of receipt of the Court's decision under Rule 7.4.
7.7 The Court's decision to revoke the appointment of any arbitrator under Rule 7.6 is without prejudice to
the validity of any act done or order or Award made by the arbitrator before his appointment was revoked.
7.8 After the constitution of the Tribunal, a party or non-party to the arbitration may apply to the Tribunal
for one or more additional parties to be joined in an arbitration pending under these Rules as a Claimant
or a Respondent, provided that any of the following criteria is satisfied:
a. the additional party to be joined is prima facie bound by the arbitration agreement; or
b, all parties, including the additional party to be joined, have consented to the joinder of the
additional party.
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Where appropriate, an application to the Tribunal under this Rule 7.8 may be filed with the Registrar.
Subject to any specific directions of the Tribunal, the provisions of Rule 7.2 shall apply, mutatis mutandis,
7.9
to an application for joinder under Rule 7.8.
The Tribunal shall, after giving all parties, including the additional party to be joined, the opportunity to 7.10
be heard, and having regard to the circumstances of the case, decide whether to grant, in whole or in part,
any application for joinder under Rule 7.8. The Tribunal’s decision to grant an application for joinder
under this Rule 7.10 is without prejudice to its power to subsequently decide any question as to its juris-
diction arising from such decision.
Where an application for joinder is granted under Rule 7.10, the date of receipt by the Tribunal or the 7.11
Registrar, as the case may be, of the complete application for joinder shall be deemed to be the date of
commencement of the arbitration in respect of the additional party.
Where an application for joinder is granted under Rule 7.4 or Rule 7.10, any party who has not nomi- 7.12
nated an arbitrator or otherwise participated in the constitution of the Tribunal shall be deemed to have
waived its right to nominate an arbitrator or otherwise participate in the constitution of the Tribunal,
without prejudice to the right of such party to challenge an arbitrator pursuant to Rule 14.
Where an application for joinder is granted under Rule 7.4 or Rule 7.10, the requisite filing fee under 7.13
these Rules shall be payable for any additional claims or counterclaims.

8 Consolidation
Prior to the constitution of any Tribunal in the arbitrations sought to be consolidated, a party may filean 8.1
application with the Registrar to consolidate two or more arbitrations pending under these Rules into a
single arbitration, provided that any of the following criteria is satisfied in respect of the arbitrations to
be consolidated:
a. all parties have agreed to the consolidation;
b. all the claims in the arbitrations are made under the same arbitration agreement; or
c. the arbitration agreements are compatible, and: (i) the disputes arise out of the same legal
relationship(s); (ii) the disputes arise out of contracts consisting of a principal contract and its ancil-
lary contract(s); or (iii) the disputes arise out of the same transaction or series of transactions.
An application for consolidation under Rule 8.1 shall include: 8.2
a. the case reference numbers of the arbitrations sought to be consolidated;
b. the names, addresses, telephone numbers, facsimile numbers and electronic mail addresses, if
known, of all parties and their representatives, if any, and any arbitrators who have been nominated
or appointed in the arbitrations sought to be consolidated;
c. the information specified in Rule 3.1(c) and Rule 3.1(d);
d. if the application is being made under Rule 8.1(a), identification of the relevant agreement and,
where possible, a copy of such agreement; and
e. abrief statement of the facts and legal basis supporting the application.
The party applying for consolidation under Rule 8.1 shall, at the same time as it files an application for 8.3
consolidation with the Registrar, send a copy of the application to all parties and shall notify the Registrar
that it has done so, specifying the mode of service employed and the date of service.
The Court shall, after considering the views of all parties, and having regard to the circumstances of the 8.4
case, decide whether to grant, in whole or in part, any application for consolidation under Rule 8.1. The
Court's decision to grant an application for consolidation under this Rule 8.4 is without prejudice to the
Tribunal’s power to subsequently decide any question as to its jurisdiction arising from such decision.
The Court's decision to reject an application for consolidation under this Rule 8.4, in whole or in part, is
without prejudice to any party’s right to apply to the Tribunal for consolidation pursuant to Rule 8.7. Any
arbitrations that are not consolidated shall continue as separate arbitrations under these Rules.
Where the Court decides to consolidate two or more arbitrations under Rule 8.4, the arbitrations shall be 8.5
consolidated into the arbitration that is deemed by the Registrar to have commenced first, unless other-
wise agreed byallparties orthe Court decides other wise
having regard tothecircumstances ofthe case.
Where an application for consolidation isgranted under Rule 8.4, the Court may revoke the appoint- 8.6
ment of any arbitrators appointed prior tothe decision on consolidation. Unless otherwise agreed byall
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parties, Rule 9 to Rule 12 shall apply as appropriate, and the respective timelines thereunder shall run
from the date ofreceipt of the Court’s decision under Rule 8.4.
8.7 After the constitution of any Tribunal in the arbitrations sought to be consolidated, a party may apply to
the Tribunal to consolidate two or more arbitrations pending under these Rules into a single arbitration,
provided that any of the following criteria is satisfied in respect of the arbitrations to be consolidated:
a. all parties have agreed to the consolidation;
b. all the claims in the arbitrations are made under the same arbitration agreement, and the same
Tribunal has been constituted in each of the arbitrations or no Tribunal has been constituted in the
other arbitration(s); or
c. thearbitration agreements are compatible, the same Tribunal has been constituted in each of the arbitra-
tions or no Tribunal has been constituted in the other arbitration(s), and: (i) the disputes arise out of the
same legal relationship(s); (ii) the disputes arise out of contracts consisting of a principal contract and
its ancillary contract(s); or (iii) the disputes arise out of the same transaction or series of transactions.

Subject to any specific directions of the Tribunal, the provisions of Rule 8.2 shall apply, mutatis mutandis,
to an application for consolidation under Rule 8.7.
8.9 The Tribunal shall, after giving all parties the opportunity to be heard, and having regard to the circum-
stances of the case, decide whether to grant, in whole or in part, any application for consolidation under
Rule 8.7. The Tribunal’s decision to grant an application for consolidation under this Rule 8.9 is without
prejudice to its power to subsequently decide any question as to its jurisdiction arising from such deci-
sion, Any arbitrations that are not consolidated shall continue as separate arbitrations under these Rules.
8.10 Where an application for consolidation is granted under Rule 8.9, the Court may revoke the appoint-
ment of any arbitrators appointed prior to the decision on consolidation.
8.11 The Court’s decision to revoke the appointment of any arbitrator under Rule 8.6 or Rule 8.10 is without
prejudice to the validity of any act done or order or Award made by the arbitrator before his appointment
was revoked.
8.12 Where an application for consolidation is granted under Rule 8.4 or Rule 8.9, any party who has not
nominated an arbitrator or otherwise participated in the constitution of the Tribunal shall be deemed
to have waived its right to nominate an arbitrator or otherwise participate in the constitution of the
Tribunal, without prejudice to the right of such party to challenge an arbitrator pursuant to Rule 14.

9 Number and Appointment of Arbitrators

a1 A sole arbitrator shall be appointed in any arbitration under these Rules unless the parties have otherwise
agreed; or it appears to the Registrar, giving due regard to any proposals by the parties, that the complex-
ity, the quantum involved or other relevant circumstances of the dispute, warrants the appointment of
three arbitrators.
9.2 If the parties have agreed that any arbitrator is to be appointed by one or more of the parties, or by any
third person including by the arbitrators already appointed, that agreement shall be deemed an agreement
to nominate an arbitrator under these Rules.
9.3 In all cases, the arbitrators nominated by the parties, or by any third person including by the arbitrators
already appointed, shall be subject to appointment by the President in his discretion.
9.4 The President shall appoint an arbitrator as soon as practicable. Any decision by the President to appoint
an arbitrator under these Rules shall be final and not subject to appeal.
9.5 The President may appoint any nominee whose appointment has already been suggested or proposed by
any party.
The terms of appointment of each arbitrator shall be fixed by the Registrar in accordance with these Rules
and any Practice Notes for the time being in force, or in accordance with the agreement of the parties.

10 Sole Arbitrator
10.1 Ifa sole arbitrator is to be appointed, either party may propose to the other party the names of one or more
persons to serve as the sole arbitrator. Where the parties have reached an agreement on the nomination
of
a sole arbitrator, Rule 9.3 shall apply.

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{f within 21 days after the date of commencement ofthe arbitration, or within the period otherwise agreed 10.2
by the parties or set by the Registrar, the parties have not reached an agreement on the nomination of a
sole arbitrator, or if at any time either party so requests, the President shall appoint the sole arbitrator.

ll Three Arbitrators
[f three arbitrators are to be appointed, each party shall nominate one arbitrator. 11.1
Ifa party fails to make a nomination of an arbitrator within 14 days after receipt of a party's nomination 11.2
of an arbitrator, or within the period otherwise agreed by the parties or set by the Registrar, the President
shall proceed to appoint an arbitrator on its behalf.
Unless the parties have agreed upon another procedure for appointing the third arbitrator, or if such 11.3
agreed procedure does not result in a nomination within the period agreed by the parties or set by the
Registrar, the President shall appoint the third arbitrator, who shall be the presiding arbitrator.

12 Multi-Party Appointment of Arbitrator(s)

Where there are more than two parties to the arbitration, and a sole arbitrator is to be appointed, the 12.1
parties may agree to jointly nominate the sole arbitrator. In the absence of such joint nomination having
been made within 28 days of the date of commencement of the arbitration or within the period otherwise
agreed by the parties or set by the Registrar, the President shall appoint the sole arbitrator.
Where there are more than two parties to the arbitration, and three arbitrators are to be appointed, the 12.2
Claimant(s) shall jointly nominate one arbitrator and the Respondent(s) shall jointly nominate one
arbitrator. The third arbitrator, who shall be the presiding arbitrator, shall be appointed in accordance
with Rule 11.3. In the absence of both such joint nominations having been made within 28 days of the
date of commencement of the arbitration or within the period otherwise agreed by the parties or set by
the Registrar, the President shall appoint all three arbitrators and shall designate one of them to be the
presiding arbitrator.

13 Qualifications of Arbitrators
Any arbitrator appointed in an arbitration under these Rules, whether or not nominated by the parties, 13.1
shall be and remain at all times independent and impartial.
In appointing an arbitrator under these Rules, the President shall have due regard to any qualifications 13.2
required of the arbitrator by the agreement of the parties and to such considerations that are relevant to
the impartiality or independence of the arbitrator.
The President shall also consider whether the arbitrator has sufficient availability to determine the case in 13.3
a prompt and efficient manner that is appropriate given the nature of the arbitration.
A nominated arbitrator shall disclose to the parties and to the Registrar any circumstances that may give 13.4
rise to justifiable doubts as to his impartiality or independence as soon as reasonably practicable and in
any event before his appointment.
An arbitrator shall immediately disclose to the parties, to the other arbitrators and to the Registrar any 13.5
circumstances that may give rise to justifiable doubts as to his impartiality or independence that may be
discovered or arise during the arbitration.
No party or person acting on behalf of a party shall have any ex parte communication relating to the case 13.6
with any arbitrator or with any candidate for appointment as party-nominated arbitrator, except to advise
the candidate of the general nature of the controversy and of the anticipated proceedings; to discuss the
candidate's qualifications, availability or independence in relation to the parties; or to discuss the suitabil-
ity of candidates for selection as the presiding arbitrator where the parties or party-nominated arbitrators
are to participate in that selection. No party or person acting on behalf of a party shall have any ex parte
communication relating to the case with any candidate for presiding arbitrator.

14 Challenge of Arbitrators
astothe arbitra-
exist that give riseto justifiable doubts
Any arbitrator may be challenged ifcircumstances 14.1
7ofhndeteticlenoe orthewfbleveeor diettiotpotsatany requisite qualification on which
s impartiality
sans
the parties have
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14.2 A party may challenge the arbitrator nominated by it only for reasons of which it becomes aware after the
appointment has been made.

15 Notice of Challenge
15.1 A party that intends to challenge an arbitrator shall file a notice of challenge with the Registrar in accord-
ance with the requirements of Rule 15.2 within 14 days after receipt of the notice of appointment of the
arbitrator who is being challenged or within 14 days after the circumstances specified in Rule 14.1 or Rule
14.2 became known or should have reasonably been known to that party.
15.2 The notice of challenge shall state the reasons for the challenge. The date of receipt of the notice of
challenge by the Registrar shall be deemed to be the date the notice of challenge is filed. The party
challenging an arbitrator shall, at the same time as it files a notice of challenge with the Registrar,
send the notice of challenge to the other party, the arbitrator who is being challenged and the other
members of the Tribunal (or if the Tribunal has not yet been constituted, any appointed arbitrator),
and shall notify the Registrar that it has done so, specifying the mode of service employed and the
date of service.
15.3 The party making the challenge shall pay the requisite challenge fee under these Rules in accordance with
the applicable Schedule of Fees. Ifthe party making the challenge fails to pay the challenge fee within the
time limit set by the Registrar, the challenge shall be considered as withdrawn.
15.4 After receipt of a notice of challenge under Rule 15.2, the Registrar may order a suspension of the arbitral
proceedings until the challenge is resolved. Unless the Registrar orders the suspension of the arbitral pro-
ceedings pursuant to this Rule 15.4, the challenged arbitrator shall be entitled to continue to participate
in the arbitration pending the determination of the challenge by the Court in accordance with Rule 16.
15.5 Where an arbitrator is challenged by a party, the other party may agree to the challenge, and the Court
shall remove the arbitrator if all parties agree to the challenge. The challenged arbitrator may also volun-
tarily withdraw from office. In neither case does this imply acceptance of the validity of the grounds for
the challenge.
15.6 If an arbitrator is removed or withdraws from office in accordance with Rule 15.5, a substitute arbitrator
shall be appointed in accordance with the procedure applicable to the nomination and appointment of
the arbitrator being replaced. This procedure shall apply even if, during the process of appointing the
challenged arbitrator, a party failed to exercise its right to nominate an arbitrator. The time limits applic-
able to the nomination and appointment of the substitute arbitrator shall commence from the date of
receipt of the agreement of the other party to the challenge or the challenged arbitrator's withdrawal from
office.

16 Decision on Challenge
16.1 If, within seven days of receipt of the notice of challenge under Rule 15, the other party does not
agree to the challenge and the arbitrator who is being challenged does not withdraw voluntarily
from office, the Court shall decide the challenge. The Court may request comments on the challenge
from the parties, the challenged arbitrator and the other members of the Tribunal (or if the Tribunal
has not yet been constituted, any appointed arbitrator), and set a schedule for such comments to
be made.
16.2 If the Court accepts the challenge to an arbitrator, the Court shall remove the arbitrator, and a substitute
arbitrator shall be appointed in accordance with the procedure applicable to the nomination and appoint-
ment of the arbitrator being replaced. The time limits applicable to the nomination and appointment of
the substitute arbitrator shall commence from the date of the Registrar’s notification to the parties of the
decision by the Court.
16.3 If the Court rejects the challenge to an arbitrator, the challenged arbitrator shall continue with the
arbitration. :
16.4 The Court's decision on any challenge to an arbitrator under this Rule 16 shall be reasoned, unless other-
wise agreed by the parties, and shall be issued to the parties by the Registrar, Any such decision on any
challenge by the Court shall be final and not subject to appeal.

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17 Replacement ofan Arbitrator

Except as otherwise provided in these Rules, in the event of the death, resignation, withdrawal or removal of 17.1
an arbitrator during the course ofthe arbitral proceedings, a substitute arbitrator shall be appointed in accord-
ance with the procedure applicable to the nomination and appointment of the arbitrator being replaced.
In the event that an arbitrator refuses or fails to act or perform his functions in accordance with the Rules 17.2
or within prescribed time limits, or in the event of any dejure or defacto impossibility by an arbitrator to
act or perform his functions, the procedure for challenge and replacement of an arbitrator provided in
Rule 14 to Rule 16 and Rule 17.1 shall apply.
The President may, at his own initiative and in his discretion, remove an arbitrator who refuses or fails 17.3
to act or to perform his functions in accordance with the Rules or within prescribed time limits, or in
the event of a de jure or de facto impossibility of an arbitrator to act or perform his functions, or if the
arbitrator does not conduct or participate in the arbitration with due diligence and/or in a manner that
ensures the fair, expeditious, economical and final resolution of the dispute. The President shall consult
the parties and the members of the Tribunal, including the arbitrator to be removed (or if the Tribunal has
not yet been constituted, any appointed arbitrator) prior to the removal of an arbitrator under this Rule.

18 Repetition of Hearings in the Event of Replacement of an Arbitrator

If the sole or presiding arbitrator is replaced in accordance with the procedure in Rule 15 to Rule 17, any
hearings held previously shall be repeated unless otherwise agreed by the parties. If any other arbitrator is
replaced, any hearings held previously may be repeated at the discretion of the Tribunal after consulting
with the parties. If the Tribunal has issued an interim or partial Award, any hearings relating solely to that
Award shall not be repeated, and the Award shall remain in effect.

19 Conduct of the Proceedings

The Tribunal shall conduct the arbitration in such manner as it considers appropriate, after consulting 19.1
with the parties, to ensure the fair, expeditious, economical and final resolution of the dispute.
The Tribunal shall determine the relevance, materiality and admissibility of all evidence. The Tribunal is 19.2
not required to apply the rules of evidence of any applicable law in making such determination.
As soon as practicable after the constitution of the Tribunal, the Tribunal shall conduct a preliminary 19.3
meeting with the parties, in person or by any other means, to discuss the procedures that will be most
appropriate and efficient for the case.
The Tribunal may, in its discretion, direct the order of proceedings, bifurcate proceedings, exclude cumu- 19.4
lative or irrelevant testimony or other evidence and direct the parties to focus their presentations on issues
the decision of which could dispose of all or part of the case.
Unless otherwise agreed by the parties, the presiding arbitrator may make procedural rulings alone, sub- 19.5
ject to revision by the Tribunal.
All statements, documents or other information supplied to the Tribunal and/or the Registrar by a party 19.6
shall simultaneously be communicated to the other party.
The President may, at any stage of the proceedings, request the parties and the Tribunal to convene a meet- 19.7
ing to discuss the procedures that will be most appropriate and efficient for the case. Such meeting may
be conducted in person or by any other means.

20 Submissions by the Parties

Unless the Tribunal determines otherwise, the submission of written statements shall proceed as set out 20.1
in this Rule.
Unless already submitted pursuant to Rule 3.2, the Claimant shall, within a period of time to be deter- 20.2
mined by the Tribunal, send to the Respondent and the Tribunal a Statement of Claim setting out in full
detail:
a. astatement of facts supportingthe claim; - =
b. the legal grounds or arguments supporting the claim;
c. et oe se togwith eth er
the amount ofall quantifiable claims.

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20.3 Unless already submitted pursuant to Rule 4.2, the Respondent shall, within a period of time to be
determined by the Tribunal, send to the Claimant and the Tribunal a Statement of Defence setting out
in full detail:
a. astatement of facts supporting its defence to the Statement of Claim;
b. the legal grounds or arguments supporting such defence; and
c. the relief claimed.
20.4 If a Statement of Counterclaim is made, the Claimant shall, within a period of time to be determined by
the Tribunal, send to the Respondent and the Tribunal a Statement of Defence to Counterclaim setting
out in full detail:
a. astatement of facts supporting its defence to the Statement of Counterclaim;
b. the legal grounds or arguments supporting such defence; and
c. the relief claimed.
20.5 A party may amend its claim, counterclaim or other submissions unless the Tribunal considers it inappro-
priate to allow such amendment having regard to the delay in making it or prejudice to the other party or
any other circumstances. However, a claim or counterclaim may not be amended in such a manner that
the amended claim or counterclaim falls outside the scope of the arbitration agreement.
20.6 The Tribunal shall decide which further submissions shall be required from the parties or may be pre-
sented by them. The Tribunal shall fix the periods of time for communicating such submissions.
20.7 All submissions referred to in this Rule shall be accompanied by copies of all supporting documents
which have not previously been submitted by any party.
20.8 If the Claimant fails within the time specified to submit its Statement of Claim, the Tribunal may issue an
order for the termination of the arbitral proceedings or give such other directions as may be appropriate.
20.9 If the Respondent fails to submit its Statement of Defence, or if at any point any party fails to avail itself
of the opportunity to present its case in the manner directed by the Tribunal, the Tribunal may proceed
with the arbitration.

21 Seat of the Arbitration

21.1 The parties may agree on the seat of the arbitration. Failing such an agreement, the seat of the arbitration
shall be determined by the Tribunal, having regard to all the circumstances of the case.
21.2 The Tribunal may hold hearings and meetings by any means it considers expedient or appropriate and at
any location it considers convenient or appropriate.

22 Language of the Arbitration

22.1 Unless otherwise agreed by the parties, the Tribunal shall determine the language to be used in the
arbitration.
22.2 If a party submits a document written in a language other than the language(s) of the arbitration, the
Tribunal, or if the Tribunal has not been constituted, the Registrar, may order that party to submit a trans-
lation in a form to be determined by the Tribunal or the Registrar.

23 Party Representatives
23.1 Any party may be represented by legal practitioners or any other authorised representatives, The Registrar
and/or the Tribunal may require proof of authority of any party representatives.
23.2 After the constitution of the Tribunal, any change or addition by a party to its representatives shall be
promptly communicated in writing to the parties, the Tribunal and the Registrar.

24 Hearings ;
24.1 Unless the parties have agreed on a documents-only arbitration or as otherwise provided in these Rules,
the Tribunal shall, if either party so requests or the Tribunal so decides, hold a hearing for the presen-
tation of evidence and/or for oral submissions on the merits of the dispute, including any issue as to
jurisdiction.

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the Tribunal shall, after consultation with the parties, set the date, time and place of any meeting or hear- 24.2
ing and shall give the parties reasonable notice.
lf any party fails to appear at a meeting or hearing without showing sufficient cause for such failure, the 24.3
[ribunal may proceed with the arbitration and may make the Award based on the submissions and evi-
dence before it.
Unless otherwise agreed by the parties, all meetings and hearings shall be in private, and any recordings, 24.4
transcripts, or documents used in relation to the arbitral proceedings shall remain confidential.

25 Witnesses
Before any hearing, the Tribunal may require the parties to give notice of the identity of witnesses, includ- 25.1
ing expert witnesses, whom the parties intend to produce, the subject matter of their testimony and its
relevance to the issues.
The Tribunal may allow, refuse or limit the appearance of witnesses to give oral evidence at any hearing. 25.2
Any witness who gives oral evidence may be questioned by each of the parties, their representatives and 25.3
the Tribunal in such manner as the Tribunal may determine.
The Tribunal may direct the testimony of witnesses to be presented in written form, either as signed state- 25.4
ments or sworn affidavits or any other form of recording. Subject to Rule 25.2, any party may request that
such a witness should attend for oral examination. If the witness fails to attend for oral examination, the
Tribunal may place such weight on the written testimony as it thinks fit, disregard such written testimony,
or exclude such written testimony altogether.
It shall be permissible for any party or its representatives to interview any witness or potential witness 25.5
(that may be presented by that party) prior to his appearance to give oral evidence at any hearing.

26 Tribunal-Appointed Experts
Unless otherwise agreed by the parties, the Tribunal may: 26.1
a. following consultation with the parties, appoint an expert to report on specific issues; and
b. require a party to give any expert appointed under Rule 26.1(a) any relevant information, or to prod-
uce or provide access to any relevant documents, goods or property for inspection.
Any expert appointed under Rule 26.1(a) shall submit a report in writing to the Tribunal. Upon receipt 26.2
of such written report, the Tribunal shall deliver a copy of the report to the parties and invite the parties
to submit written comments on the report.
Unless otherwise agreed by the parties, if the Tribunal considers it necessary or at the request of any party, 26.3
an expert appointed under Rule 26.1(a) shall, after delivery of his written report, participate in a hearing.
At the hearing, the parties shall have the opportunity to examine such expert. -

27 Additional Powers of the Tribunal

Unless otherwise agreed by the parties, in addition to the other powers specified in these Rules, and
except as prohibited by the mandatory rules of law applicable to the arbitration, the Tribunal shall have
the power to:
a. order the correction or rectification of any contract, subject to the law governing such contract;
b. except as provided in these Rules, extend or abbreviate any time limits prescribed under these Rules
or by its directions;
conduct such enquiries as may appear to the Tribunal to be necessary or expedient;
order the parties to make any property or item in their possession or control available for inspection;
gooorder the preservation, storage, sale or disposal of any property or item which is or forms part of the
subject matter of the dispute;
f, orde r toproducetotheTribunal and to the other parties for inspection, and to supply cop-
any party
iesof,anydocumentintheir possession orcontrol which the Tribunal considers relevant to the case
and material to its outcome;
issue an order or Award for the reimbursement of unpaid deposits towar costs of the arbitration;
theds
mo direct any party orperson togive evidence byaffidavit or in any other form;

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LL_L*"*"ELELLEEEeeeeeeeeeeeeee
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i. direct any party to take or refrain from taking actions to ensure that any Award which may be made
in the arbitration is not rendered ineffectual by the dissipation of assets by a party or otherwise;
—
order any party to provide security for legal or other costs in any manner the Tribunal thinks fir
k. order any party to provide security for all or part of any amount in dispute in the arbitration;
—_—proceed with the arbitration notwithstanding the failure or refusal of any party to comply with these
Rules or with the Tribunal’s orders or directions or any partial Award or to attend any meeting or
hearing, and to impose such sanctions as the Tribunal deems appropriate in relation to such failure
or refusal;
m. decide, where appropriate, any issue not expressly or impliedly raised in the submissions of a party
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; ;
n. determine the law applicable to the arbitral proceedings; and
o. determine any claim of legal or other privilege.

28 Jurisdiction of the Tribunal

28.1 If any 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 constituted, the Registrar shall determine if such
objection shall be referred to the Court. If the Registrar so determines, the Court shall decide if it is prima
facie satisfied that the arbitration shall proceed. The arbitration shall be terminated if the Court is not so
satisfied. Any decision by the Registrar or the Court that the arbitration shall proceed is without prejudice
to the power of the Tribunal to rule on its own jurisdiction.
28.2 The Tribunal shall have the power to rule on its own jurisdiction, including any objections with respect to
the existence, validity or scope of the arbitration agreement. An arbitration agreement which forms part
of a contract shall be treated as an agreement independent of the other terms of the contract. A decision
by the Tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration
agreement, and the Tribunal shall not cease to have jurisdiction by reason of any allegation that the con-
tract is non-existent or null and void.
28.3 Any objection that the Tribunal:
a. does not have jurisdiction shall be raised no later than in a Statement of Defence or in a Statement of
Defence to a Counterclaim; or
b. is exceeding the scope of its jurisdiction shall be raised within 14 days after the matter alleged to be
beyond the scope of the Tribunal’s jurisdiction arises during the arbitral proceedings.
The Tribunal may admit an objection raised by a party outside the time limits under this Rule 28.3 if it
considers the delay justified. A party is not precluded from raising an objection under this Rule 28.3 by
the fact that it has nominated, or participated in the nomination of, an arbitrator.
28.4 The Tribunal may rule on an objection referred to in Rule 28.3 either as a preliminary question or in an
Award on the merits.
28.5 A party may rely on a claim or defence for the purpose of a set-off to the extent permitted by these Rules
and the applicable law.

29 Early Dismissal of Claims and Defences

29.1 A party may apply to the Tribunal for the early dismissal of a claim or defence on the basis that:
a. aclaim or defence is manifestly without legal merit; or
b. aclaim or defence is manifestly outside the jurisdiction of the Tribunal.
29.2 An application for the early dismissal of a claim or defence under Rule 29.1 shall state in detail the facts
and legal basis supporting the application. The party applying for early dismissal shall, at the same time
as it files the application with the Tribunal, send a copy of the application to the other party, and shall
notify the Tribunal that it has done so, specifying the mode of service employed and the date of service.
29.3 The Tribunal may, in its discretion, allow the application for the early dismissal of a claim or defence
under Rule 29.1 to proceed. If the application is allowed to proceed, the Tribunal shall, after giving the

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parties the opportunity to be heard, decide whether to grant, in whole or in part, the application for early
dismissal under Rule 29.1. |
If the application is allowed to proceed, the Tribunal shall make an order or Award on the application, 29.4
with reasons, which may be in summary form. The order or Award shall be made within 60 days of the
date of filing of the application, unless, in exceptional circumstances, the Registrar extends the time.

30 Interim and Emergency Interim Relief

The Tribunal may, at the request of a party, issue an order or an Award granting an injunction or any other 30.1
interim relief it deems appropriate. The Tribunal may order the party requesting interim relief to provide
appropriate security in connection with the relief sought.
A party that wishes to seek emergency interim relief prior to the constitution of the Tribunal may apply 30.2
for such relief pursuant to the procedures set forth in Schedule 1.
A request for interim relief made by a party to a judicial authority prior to the constitution of the Tribunal, 30.3
or in exceptional circumstances thereafter, is not incompatible with these Rules.

31 Applicable Law, Amiable Compositeur and ExAequo et Bono

The Tribunal shall apply the law or rules of law designated by the parties as applicable to the substance of 31.1
the dispute. Failing such designation by the parties, the Tribunal shall apply the law or rules of law which
it determines to be appropriate.
The Tribunal shall decide as amiable compositeur or exaequo et bono if the parties have expressly authorised STZ
it to do so.
In all cases, the Tribunal shall decide in accordance with the terms of the contract, if any, and shall take 31.3
into account any applicable usage of trade.

32 Award
The Tribunal shall, as promptly as possible, after consulting with the parties and upon being satisfied that 32.1
the parties have no further relevant and material evidence to produce or submission to make with respect
to the matters to be decided in the Award, declare the proceedings closed. The Tribunal’s declaration that
the proceedings are closed shall be communicated to the parties and to the Registrar.
The Tribunal may, on its own motion or upon application of a party but before any Award is made, 32.2
re-open the proceedings. The Tribunal’s decision that the proceedings are to be re-opened shall be com-
municated to the parties and to the Registrar. The Tribunal shall close any re-opened proceedings in
accordance with Rule 32.1.
Before making any Award, the Tribunal shall submit such Award in draft form to the Registrar. Unless the 32.3
Registrar extends the period of time or unless otherwise agreed by the parties, the Tribunal shall submit
the draft Award to the Registrar not later than 45 days from the date on which the Tribunal declares the
proceedings closed. The Registrar may, as soon as practicable, suggest modifications as to the form of the
Award and, without affecting the Tribunal’s liberty to decide the dispute, draw the Tribunal’s attention to
points of substance. No Award shall be made by the Tribunal until it has been approved by the Registrar
as to its form.
The Award shall be in writing and shall state the reasons upon which it is based unless the parties have 32.4
agreed that no reasons are to be given.
Unless otherwise agreed by the parties, the Tribunal may make separate Awards on different issues at 32.5
different times.
If any arbitrator fails to cooperate in the making of the Award, having been given a reasonable oppor- 32.6
tunity to do so, the remaining arbitrators may proceed. The remaining arbitrators shall provide written
notice of such refusal or failure to the Registrar, the parties and the absent arbitrator. In deciding whether
to proceed with the arbitration inthe absence ofanarbitrator, the remaining arbitrators may take into
account, among other things, the stage ofthearbitration, any explanation provi absent arbi-
by theded
trator forhis refusal toparticipate and the effect, ifany, upon the enforcof
eabili tythe
the Award should

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remaining arbitrators proceed without the absent arbitrator. The remaining arbitrators shall explain in
any Award made the reasons for proceeding without the absent arbitrator.
32.7 Where there is more than one arbitrator, the Tribunal shall decide by a majority. Failing a majority deci-
sion, the presiding arbitrator alone shall make the Award for the Tribunal.
32.8 The Award shall be delivered to the Registrar, who shall transmit certified copies to the parties upon full
settlement of the costs of the arbitration.
32.9 The Tribunal may award simple or compound interest on any sum which is the subject of the arbi-
tration at such rates as the parties may have agreed or, in the absence of such agreement, as the
Tribunal determines to be appropriate, in respect of any period which the Tribunal determines to be
appropriate.
32.10 In the event of a settlement, and if the parties so request, the Tribunal may make a consent Award record-
ing the settlement. If the parties do not require a consent Award, the parties shall confirm to the Registrar
that a settlement has been reached, following which the Tribunal shall be discharged and the arbitration
concluded upon full settlement of the costs of the arbitration.
32.11 Subject to Rule 33 and Schedule 1, by agreeing to arbitration under these Rules, the parties agree that
any Award shall be final and binding on the parties from the date it is made, and undertake to carry out
the Award immediately and without delay. The parties also irrevocably waive their rights to any form of
appeal, review or recourse to any State court or other judicial authority with respect to such Award insofar
as such waiver may be validly made.
32.12 SIAC may, with the consent of the parties and the Tribunal, publish any Award with the names of the
parties and other identifying information redacted.

33 Correction of Awards, Interpretation of Awards and

Additional Awards
33.1 Within 30 days of receipt of an Award, a party may, by written notice to the Registrar and the other party,
request the Tribunal to correct in the Award any error in computation, any clerical or typographical error
or any error of a similar nature. If the Tribunal considers the request to be justified, it shall make the
correction within 30 days of receipt of the request. Any correction, made in the original Award or in a
separate memorandum, shall constitute part of the Award.
33.2 The Tribunal may correct any error of the type referred to in Rule 33.1 on its own initiative within 30 days
of the date of the Award.
33.3 Within 30 days of receipt of an Award, a party may, by written notice to the Registrar and the other party,
request the Tribunal to make an additional Award as to claims presented in the arbitration but not dealt
with in the Award. If the Tribunal considers the request to be justified, it shall make the additional Award
within 45 days of receipt of the request.
33.4 Within 30 days of receipt of an Award, a party may, by written notice to the Registrar and the other party,
request that the Tribunal give an interpretation of the Award. Ifthe Tribunal considers the request to be
justified, it shall provide the interpretation in writing within 45 days after receipt of the request. The inter-
pretation shall form part of the Award.
33.5 The Registrar may, if necessary, extend the period of time within which the Tribunal shall make a correc-
tion of an Award, interpretation of an Award or an additional Award under this Rule.
33.6 The provisions of Rule 32 shall apply in the same manner with the necessary or appropriate changes in
relation to a correction of an Award, interpretation of an Award and to any additional Award made.

34 Fees and Deposits

34.1 The Tribunal’s fees and SIAC’s fees shall be ascertained in accordance with the Schedule ofFees in force at
the time of commencement of the arbitration, The parties may agree to alternative methods of determin-
ing the Tribunal’s fees prior to the constitution of the Tribunal,
34.2 The Registrar shall fix the amount of deposits payable towards the costs of the arbitration. Unless the
Registrar directs otherwise, 50% of such deposits shall be payable by the Claimant and the remaini
ng

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50% ot such deposits shall be payable by the Respondent. The Registrar may fix separate deposits on costs
for claims and counterclaims, respectively.
Where the amount of the claim or the counterclaim is not quantifiable at the time payment is due, a pro- 34.3
visional estimate of the costs of the arbitration shall be made by the Registrar. Such estimate may be based
on the nature of the controversy and the circumstances of the case. This estimate may be adjusted in light
of such information as may subsequently become available.
The Registrar may from time to time direct parties to make further deposits towards the costs of the 34.4
arbitration.
Parties are jointly and severally liable for the costs of the arbitration. Any party is free to pay the whole of 34.5
the deposits towards the costs of the arbitration should the other party fail to pay its share.
If a party fails to pay the deposits directed by the Registrar either wholly or in part: 34.6
a. the Tribunal may suspend its work and the Registrar may suspend SIAC’s administration of the arbi-
tration, in whole or in part; and
b. the Registrar may, after consultation with the Tribunal (if constituted) and after informing the par-
ties, set a time limit on the expiry of which the relevant claims or counterclaims shall be considered as
withdrawn without prejudice to the party reintroducing the same claims or counterclaims in another
proceeding.
In all cases, the costs of the arbitration shall be finally determined by the Registrar at the conclusion of 34.7
the proceedings. If the claim and/or counterclaim is not quantified, the Registrar shall finally determine
the costs of the arbitration, as set out in Rule 35, in his discretion. The Registrar shall have regard to all
the circumstances of the case, including the stage of proceedings at which the arbitration concluded.
In the event that the costs of the arbitration determined are less than the deposits made, there shall be a
refund in such proportions as the parties may agree, or failing an agreement, in the same proportions as
the deposits were made.
All deposits towards the costs of the arbitration shall be made to and held by SIAC. Any interest which 34.8
may accrue on such deposits shall be retained by SIAC.
In exceptional circumstances, the Registrar may direct the parties to pay an additional fee, in addition to 34.9
that prescribed in the applicable Schedule of Fees, as part of SIAC’s administration fees.

. 35 Costs of the Arbitration

Unless otherwise agreed by the parties, the Tribunal shall specify in the Award the total amount of the 35.1
costs of the arbitration. Unless otherwise agreed by the parties, the Tribunal shall determine in the Award
the apportionment of the costs of the arbitration among the parties.
The term “costs of the arbitration” includes: 35.2
a. the Tribunal’s fees and expenses and the Emergency Arbitrator’s fees and expenses, where applicable;
b. SIAC’s administration fees and expenses; and
c. the costs of any expert appointed by the Tribunal and of any other assistance reasonably required by
the Tribunal.

36 Tribunal’s Fees and Expenses

The fees of the Tribunal shall be fixed by the Registrar in accordance with the applicable Schedule of Fees 36.1
or, if applicable, with the method agreed by the parties pursuant to Rule 34.1, and the stage of the pro-
ceedings at which the arbitration concluded. In exceptional circumstances, the Registrar may determine
that an additional fee over that prescribed in the applicable Schedule of Fees shall be paid.
The Tribunal’s reasonable out-of-pocket expenses necessarily incurred and other allowances shall be reim- 36.2
bursed in accordance with the applicable Practice Note.

37 Party's Legal and Other Costs

The Tribunal shall have theauthority toorder inits Award that allor a part ofthelegal or other costs of a
party bepaid byanother party.

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38 Exclusion of Liability
38.1 Any arbitrator, including any Emergency Arbitrator, any person appointed by the Tribunal, including
any administrative secretary and any expert, the President, members of the Court, and any directors,
officers and employees of SIAC, shall not be liable to any person for any negligence, act or omission in
connection with any arbitration administered by SIAC in accordance with these Rules.
38.2 SIAC, including the President, members of the Court, directors, officers, employees or any arbitrator,
including any Emergency Arbitrator, and any person appointed by the Tribunal, including any adminis-
trative secretary and any expert, shall not be under any obligation to make any statement in connection
with any arbitration administered by SIAC in accordance with these Rules. No party shall seek to make
the President, any member of the Court, director, officer, employee of SIAC, or any arbitrator, includ-
ing any Emergency Arbitrator, and any person appointed by the Tribunal, including any administrative
secretary and any expert, act as a witness in any legal proceedings in connection with any arbitration
administered by SIAC in accordance with these Rules.

39 Confidentiality
39.1 Unless otherwise agreed by the parties, a party and any arbitrator, including any Emergency Arbitrator,
and any person appointed by the Tribunal, including any administrative secretary and any expert, shall at
all times treat all matters relating to the proceedings and the Award as confidential. The discussions and
deliberations of the Tribunal shall be confidential.
39.2 Unless otherwise agreed by the parties, a party or any arbitrator, including any Emergency Arbitrator, and
any person appointed by the Tribunal, including any administrative secretary and any expert, shall not,
without the prior written consent of the parties, disclose to a third party any such matter except:
a. for the purpose of making an application to any competent court of any State to enforce or challenge
the Award;
pursuant to the order of or a subpoena issued by a court of competent jurisdiction;
c. for the purpose of pursuing or enforcing a legal right or claim;
d. in compliance with the provisions of the laws of any State which are binding on the party making the
disclosure or the request or requirement of any regulatory body or other authority;
€. pursuant to an order by the Tribunal on application by a party with proper notice to the other
parties; or
f. for the purpose of any application under Rule 7 or Rule 8 of these Rules.
39.3 In Rule 39.1, “matters relating to the proceedings” includes the existence of the proceedings, and the
pleadings, evidence and other materials in the arbitral proceedings and all other documents produced by
another party in the proceedings or the Award arising from the proceedings, but excludes any matter that
is otherwise in the public domain.
39.4 The Tribunal has the power to take appropriate measures, including issuing an order or Award for sanc-
tions or costs, ifa party breaches the provisions of this Rule.

40 Decisions of the President, the Court and the Registrar

Except as provided in these Rules, the decisions of the President, the Court and the Registrar with respect
to all matters relating to an arbitration shall be conclusive and binding upon the parties and the Tribunal.
The President, the Court and the Registrar shall not be required to provide reasons for such decisions,
unless the Court determines otherwise or as may be provided in these Rules. The parties agree that the
discussions and deliberations of the Court are confidential.
40.2 Save in respect of Rule 16.1 and Rule 28.1, the parties waive any right of appeal or review in respect of
any decisions of the President, the Court and the Registrar to any State court or other judicial authority.
QM

41 General Provisions
41.1 Any party that proceeds with the arbitration without promptly raising any objection to a failure to com-
ply with any provision of these Rules, or of 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.

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In all matters not expressly provided for in these Rules, the President, the Court, the Registrar and the 41.2
lribunal shall act in the spirit of these Rules and shall make every reasonable effort to ensure the fair,
expeditious and economical conclusion of the arbitration and the enforceability of any Award.
In the event of any discrepancy or inconsistency between the English version of these Rules and any other 41.3
languages in which these Rules are published, the English version shall prevail.

Schedule 1
Emergency Arbitrator
1. A party that wishes to seek emergency interim relief may, concurrent with or following the filing of a
Notice of Arbitration but prior to the constitution of the Tribunal, file an application for emergency
interim relief with the Registrar. The party shall, at the same time as it files the application for emer-
gency interim relief, send a copy of the application to all other parties. The application for emergency
interim relief shall include:
a. the nature of the relief sought;
b. the reasons why the party is entitled to such relief; and
¢. a statement certifying that all other parties have been provided with a copy of the application
or, if not, an explanation of the steps taken in good faith to provide a copy or notification to
all other parties.
2. Any application for emergency interim relief shall be accompanied by payment of the non-refundable
administration fee and the requisite deposits under these Rules towards the Emergency Arbitrators
fees and expenses for proceedings pursuant to this Schedule 1. In appropriate cases, the Registrar
may increase the amount of the deposits requested from the party making the application. If the
additional deposits are not paid within the time limit set by the Registrar, the application shall be
considered as withdrawn.
3. The President shall, if he determines that SIAC should accept the application for emergency interim
relief, seek to appoint an Emergency Arbitrator within one day of receipt by the Registrar of such
application and payment of the administration fee and deposits.
4. Ifthe parties have agreed on the seat of the arbitration, such seat shall be the seat of the proceedings
for emergency interim relief. Failing such an agreement, the seat of the proceedings for emergency
interim relief shall be Singapore, without prejudice to the Tribunal’s determination of the seat of the
arbitration under Rule 21.1.
5. Prior to accepting appointment, a prospective Emergency Arbitrator shall disclose to the Registrar
any circumstances that may give rise to justifiable doubts as to his impartiality or independence. Any
challenge to the appointment of the Emergency Arbitrator must be made within two days of the
communication by the Registrar to the parties of the appointment of the Emergency Arbitrator and
the circumstances disclosed. .
6. An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dis-
pute, unless otherwise agreed by the parties.
7. The Emergency Arbitrator shall, as soon as possible but, in any event, within two days of his appoint-
ment, establish a schedule for consideration of the application for emergency interim relief: Such sched-
ule shall provide a reasonable opportunity for the parties to be heard, but may provide for proceedings
by telephone or video conference or on written submissions as alternatives to a hearing in person. The
Emergency Arbitrator shall have the powers vested in the Tribunal pursuant to these Rules, including
the authority to rule on his own jurisdiction, without prejudice to the Tribunal’s determination.
8. The Emergency Arbitrator shall have the power to order or award any interim relief that he deems
necessary, including preliminary orders that may be made pending any hearing, telephone or video
conference or written submissions by the parties. The Emergency Arbitrator shall give summary
reasons for his decision in writing. The Emergency Arbitrator may modify or vacate the preliminary
order, the interim orderor Award for good cause.
9. The Emergency Arbitrator shall make hisinterim order or Award within 14 days from thedate ofhis
appointment unless, in exceptional circumstances, the Registrar extends the time. No interim order
or Award shall be made by the Emergency Arbitrator until ithas been approved by the Registrar asto
its form.
10. The Emergency Arbitrator shall have no power toact after the Tribunal isconstituted. The Tribunal
may reconsider, modify orvacate any interim order orAward issued by theEmergency Arbitrator,
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including a ruling on his own jurisdiction, The Tribunal is not bound by the reasons given by the
Emergency Arbitrator. Any interim order or Award issued by the Emergency Arbitrator shall, in any
event, cease to be binding if the Tribunal is not constituted within 90 days of such order or Award or
when the Tribunal makes a final Award or if the claim is withdrawn.
ll. Any interim order or Award by the Emergency Arbitrator may be conditioned on provision by the
party seeking such relief of appropriate security.
12. The parties agree that an order or Award by an Emergency Arbitrator pursuant to this Schedule |shall
be binding on the parties from the date it is made, and undertake to carry out the interim order or
Award immediately and without delay. The parties also irrevocably waive their rights to any form of
appeal, review or recourse to any State court or other judicial authority with respect to such Award
insofar as such waiver may be validly made.
13. The costs associated with any application pursuant to this Schedule 1 may initially be apportioned by
the Emergency Arbitrator, subject to the power of the Tribunal to determine finally the apportion-
ment of such costs.
14. These Rules shall apply as appropriate to any proceeding pursuant to this Schedule 1, taking into
account the urgency of such a proceeding. The Emergency Arbitrator may decide in what manner
these Rules shall apply as appropriate, and his decision as to such matters is final and not subject to
appeal, review or recourse. The Registrar may abbreviate any time limits under these Rules in applica-
tions made pursuant to proceedings commenced under Rule 30.2 and Schedule 1.

Schedule of Fees
(All sums stated are in Singapore dollars)
This Schedule of Fees is effective as of 1 August 2016 and is applicable to all arbitrations commenced on
or after 1 August 2016.

Filing Fee* (Non-Refundable)

Singapore Parties S$2,140*

Overseas Parties $$2,000

+ A filing fee is applicable to all arbitrations administered by SIAC, and to each claim or counterclaim.
* Fee includes 7% GST.

Administration Fees
The administration fee calculated in accordance with the Schedule below applies to all arbitrations
administered by SIAC and is the maximum amount payable to SIAC.
The administration fee does not include the following:

Sum in Dispute(S$) Administration Fees (S$)

Up to 50,000 3,800
50,001 to 100,000 3,800 + 2.200% excess over 50,000
100,001 to 500,000 4,900 + 1.200% excess over 100,000
500,001 to 1,000,000 9,700 + 1.000% excess over 500,000
1,000,001 to 2,000,000 14,700 + 0.650% excess over 1,000,000
2,000,001 to 5,000,000 21,200 + 0.320% excess over 2,000,000
5,000,001 to 10,000,000 30,800 + 0.160% excess over 5,000,000
10,000,001 to 50,000,000 38,800 + 0.095% excess over 10,000,000
50,000,001 to 80,000,000 76,800 + 0.040% excess over 50,000,000
80,000,001 to 100,000,000 88,800 + 0.031% excess over 80,000,000
Above 100,000,000 95,000
EE
San ee eS
* Fees and expenses of the Tribunal;

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Sage Cost Of facilities and

.

support services for and

Us; A ff “ili ~ d

in connection with any hearing (e.g. hearing rooms

a : s fi ‘ di = ae. - : 2 i

and equipment, transcription and interpretation services); and

* SIAC’s administrative expenses.
SIAC will charge a minimum administration fee of $$3,800, payable for all cases, unless the Registrar
otherwise determines.

Arbitrator’s Fees

For arbitrations conducted pursuant to and administered under these Rules, the fee calculated in accord-
ance with the Schedule below is the maximum amount payable to each arbitrator, unless the parties have
agreed to an alternative method of determining the Tribunal’s fees pursuant to Rule 34.1.

Sum in Dispute (S$) Arbitrator’s Fees (S$)

Up to 50,000 6,250
50,001 to 100,000 6,250 + 13.800% excess over 50,000
100,001 to 500,000 13,150 + 6.500% excess over 100,000
500,001 to 1,000,000 39,150 + 4.850% excess over 500,000
1,000,001 to 2,000,000 63,400 + 2.750% excess over 1,000,000
2,000,001 to 5,000,000 90,900 + 1.200% excess over 2,000,000
5,000,001 to 10,000,000 126,900 + 0.700% excess over 5,000,000
10,000,001 to 50,000,000 161,900 + 0.300% excess over 10,000,000
50,000,001 to 80,000,000 281,900 + 0.160% excess over 50,000,000
80,000,001 to 100,000,000 329,900 + 0.075% excess over 80,000,000
100,000,001 to 500,000,000 344,900 + 0.065% excess over 100,000,000
Above 500,000,000 605,000 + 0.040% excess over500,000,000
up to a maximum of 2,000,000

Emergency Interim Relief Fees

The following fees shall be payable in an application for emergency interim relief under Rule 30.2 and
Schedule 1 to these Rules:
/

Singapore Parties S$5,350*

Overseas Parties $$5,000
* Fee includes 7% GST.

An application under Rule 30.2 and Schedule 1 must be accompanied by a payment of the following:
1. Administration Fee for Emergency Arbitrator Applications (Non-Refundable):
2. Emergency Arbitrator’s Fees and Deposits: The deposits towards the Emergency Arbitrator’s fees and
expenses shall be fixed at $$30,000, unless the Registrar determines otherwise pursuant to Schedule
1 to these Rules. The Emergency Arbitrator’s fees shall be fixed at $$25,000, unless the Registrar
determines otherwise pursuant to Schedule 1 to these Rules.

Challenge Fee (Non-Refundable)

A party submitting a notice of challenge shall make payment of the following challenge fee pursuant to
Rule 15.3:

Singapore Parties S$8,560*

Overseas Parties $$8,000
* Feeincludes7%GST.

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Other Fees
Arb-Med-Arb Fees

Arbitration S$2,000
Arb-Med-Arb Singapore Parties SIAC S$2,140* + SIMC S$1,000 = S$3,140
Overseas Parties SIAC $$2,000 + SIMC S$1,000 = $$3,000

* SIAC Fee includes 7% GST.

Appointment Fees (Non-Refundable)

The appointment fee is payable where a request for appointment of arbitrator(s) is made in an ad hoc
case. The fee is payable by the party requesting the appointment. A request for appointment must be
accompanied by payment of the appointment fee prescribed below.

1 arbitrator 2arbitrator 3 arbitrator

Singapore Parties S$3,210* S$4,280* S$5,350*

Overseas Parties $$3,000 S$4,000 $$5,000
* SIAC Fee includes 7% GST.

Assessment or Taxation Fees

At the end of an arbitration, or after an issue has been decided in the course of the arbitration, the arbitra-
tor usually makes an order for the legal cost incurred by a party (or a part of the legal cost) to be paid by
the other party. The arbitrator usually fixes the amount of the cost to be paid.
SIAC prefers that the arbitrator does so. But if he or she does not do so, and the parties cannot agree on
the amount, the Registrar of SIAC may be asked to assess the amount for the parties. This process is some-
times called “taxation” of costs. The party that requires the Registrar’s services pays a fee according to the
amount of costs claimed.

Sum in Dispute (S$) Assessment or Taxation Fees (S$)

Up to 50,000 5,000
50,001 to 100,000 5,000 + 2% excess over 50,000
100,001 to 250,000 6,000 + 1.5% excess over 100,000
250,001 to 500,000 8,250 + 1% excess over 250,000
500,001 to 1,000,000 10,750 + 0.5% excess over 500,000
Above 1,000,000 13,250 + 0.25% excess over 1,000,000
Maximum 25,000

* The fee is payable at the time of request for taxation.

* The above fees do not include 7% GST as may be applicable.
* The above schedule of assessment or taxation fees is effective as of |August 2015.

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 APPENDIX 2

Investment Arbitration Rules of the Singapore International

Arbitration Centre

SIAC Investment Arbitration Rules (First Edition, 1 January 2017)

Introduction
i. For the purpose of offering a specialised set of procedures for the conduct of international investment
arbitration, the Singapore International Arbitration Centre developed the Investment Arbitration
Rules of the Singapore International Arbitration Centre (First Edition, 1 January 2017) to be applied
by agreement in disputes involving a State, State-controlled entity or intergovernmental organisa-
tion, whether arising out of a contract, treaty, statute or other instrument.
ii. The SIAC Investment Arbitration Rules have been developed with a view towards the issues unique
to international investment arbitration. These Rules may be agreed and applied in any type of arbi-
tration, the application of which shall not be subject to objective criteria, such as the existence of a
qualifying “investor” or “investment” or the presence of a State, State-controlled entity or intergov-
ernmental organisation, without prejudice to any requirements set out in the underlying contract,
treaty, statute or other instrument.
iii. Where the parties to a dispute have previously consented, or a party has previously offered to consent,
to arbitration in accordance with rules of arbitration other than the SIAC Investment Arbitration
Rules, whether in a contract, treaty, statute or other instrument, the dispute may be referred instead
to arbitration in accordance with the SIAC Investment Arbitration Rules if the parties have sub-
sequently consented to refer such dispute to arbitration in accordance with the SIAC Investment
Arbitration Rules.

1. Scope of Application and Interpretation

Where the Parties have agreed to refer a dispute to arbitration in accordance with the SIAC Investment 1.1
Arbitration Rules, the Parties shall be deemed to have agreed that the arbitration shall be conducted pur-
suant to and administered by SIAC in accordance with the SIAC Investment Arbitration Rules.
An agreement to refer a dispute to arbitration in accordance with the SIAC Investment Arbitration Rules 1.2
may be expressed in a contract, treaty, statute or other instrument, or through an offer by a Party in a
contract, treaty, statute or other instrument which is subsequently accepted by the other Party by any
means, including by the other Party’s commencement of arbitration.
An agreement by the Parties to refer a dispute to arbitration in accordance with the SIAC Investment 1.3
Arbitration Rules constitutes a waiver of any right of immunity from jurisdiction in respect of proceed-
ings relating to the arbitration to which the Parties might otherwise be entitled. Such waiver of immunity
from jurisdiction is without prejudice to immunity from execution.
The SIAC Investment Arbitration Rules shall come into force on 1 January 2017 and shall apply to any 1.4
arbitration under the SIAC Investment Arbitration Rules which is commenced on or after that date.
In these Rules: 1.5
“Award” includes a partial, interim or final award and an award of an Emergency Arbitrator;
“Committee of the Court” means a committee consisting of not less than three members of the Court
appointed by the President (which may include the President);
“Court” means the Court of Arbitration of SIAC and includes a Committee of the Court;
“Emergency Arbitrator” means an arbitrator appointed in accordance with paragraph 3 of Schedule 1;

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ee ene ee ee ee ee ee

“Non-disputing Contracting Party” means a party to a treaty pursuant to which the dispute has been
referred to arbitration in accordance with these Rules and that is not a Party to the arbitration;
“Non-disputing Party” means a person or entity that is neither a Party to the arbitration nor a party to a
treaty pursuant to which the dispute has been referred to arbitration in accordance with these Rules;
“Parties” mean the Claimant(s) and Respondent(s) in a dispute referred to arbitration in accordance
with these Rules;
“Party” means the Claimant(s) or Respondent(s) in a dispute referred to arbitration in accordance with
these Rules;
“Practice Notes” mean the guidelines published by the Registrar from time to time to supplement,
regulate and implement these Rules; ;
“President” means the President of the Court and includes any Vice President and the Registrar;
“Registrar” means the Registrar of the Court and includes any Deputy Registrar; “SIAC” means the
Singapore International Arbitration Centre;
“SIAC Investment Arbitration Rules” or “Rules” mean the Investment Arbitration Rules of the
Singapore International Arbitration Centre (1st Edition, 1 January 2017);
“Tribunal” includes a sole arbitrator or all the arbitrators where more than one arbitrator is appointed.
Any pronoun in these Rules shall be understood to be gender-neutral. Any singular noun shall be
understood to refer to the plural in the appropriate circumstances.

2. Notice and Calculation of Periods of Time

? For the purposes of these Rules, any notice, communication or proposal shall be in writing. Any such
notice, communication or proposal may be delivered by hand, registered post or courier service, or trans-
mitted by any form of electronic communication (including electronic mail and facsimile), or delivered
by any other appropriate means that provides a record of its delivery. Any notice, communication or
proposal shall be deemed to have been received if it is delivered: (i) to the addressee personally or to
its authorised representative; (ii) to the addressee’s habitual residence, place of business or designated
address; (iii) to any address agreed by the Parties; (iv) according to the practice of the Parties in prior
dealings; or (v) if, after reasonable efforts, none of these can be found, then at the addressee’s last-known
residence or place of business.
2.2 Any notice, communication or proposal shall be deemed to have been received on the day it is delivered
in accordance with Rule 2.1.
2.3 For the purpose of calculating any period of time under these Rules, such period shall begin to run on
the day following the day when a notice, communication or proposal is deemed to have been received.
Unless the Registrar or the Tribunal determines otherwise, any period of time under these Rules is to be
calculated in accordance with Singapore Standard Time (GMT + 8).
2.4 Any non-business days at the place of receipt shall be included in calculating any period of time under
these Rules. If the last day of any period of time under these Rules is not a business day at the place of
receipt in accordance with Rule 2.1, the period is extended until the first business day which follows.
2.5 The Parties shall file with the Registrar a copy of any notice, communication or proposal concerning the
arbitral proceedings.
2.6 Except as provided in these Rules, the Registrar may at any time extend or abbreviate any time limits
prescribed under these Rules.

3. Notice of Arbitration
3.1 A Party wishing to commence an arbitration under these Rules (the “Claimant”) shall file with the
Registrar a Notice of Arbitration which shall include:
a. ademand that the dispute be referred to arbitration;
b, the names, nationalities, addresses, telephone numbers, facsimile numbers and electronic mail
addresses, if known, of the Parties to the arbitration and their representatives, if any;
c. areference to the arbitration clause and a copy of the arbitration clause;
d. areference to the contract, treaty, statute or other instrument out of or in relation to which the dispute
arises and a copy of the contract, treaty, statute or other instrument;

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¢. where applicable, a brief statement describing the nature of the relationship between a Party and any
relevant State, State-controlled entity or intergovernmental organisation, and how the Parties are
bound by the arbitration clause;
f. abrief statement describing the nature and circumstances of the dispute, specifying the relief claimed
and, where possible, an initial quantification of the claim amount;
g. statement of any matters which the Parties have previously agreed as to the conduct of the arbitration
or with respect to which the Claimant wishes to make a proposal;
h. a proposal for the number of arbitrators if not specified in the arbitration clause;
i. unless otherwise agreed by the Parties, the nomination of its arbitrator(s) if the arbitration clause pro-
vides for three or more arbitrators, or a proposal for a sole arbitrator if the arbitration clause provides
for a sole arbitrator;
j. any comment as to the applicable rules of law;
k. any comment as to the language of the arbitration; and
|, payment of the requisite filing fee under these Rules.
The date of receipt of the complete Notice of Arbitration by the Registrar shall be deemed to be the date 3.2
of commencement of the arbitration. For the avoidance of doubt, the Notice of Arbitration is deemed
to be complete when all the requirements of Rule 3.1 are fulfilled or when the Registrar determines that
there has been substantial compliance with such requirements. SIAC shall notify the Parties of the com-
mencement of the arbitration.
The Claimant shall, at the same time as it files the Notice of Arbitration with the Registrar, send acopy of 3.3
the Notice of Arbitration to the Respondent, and shall notify the Registrar that it has done so, specifying
the mode of service employed and the date of service.

4. Response to the Notice ofArbitration

The Respondent shall file a Response with the Registrar within 35 days of receipt of the Notice of 4.1
Arbitration. The Response shall include:
a. a confirmation or denial of all or part of the claims, including, where possible, any plea that the
Tribunal lacks jurisdiction;
b. a brief statement describing the nature and circumstances of any counterclaim, specifying the relief
claimed and, where possible, an initial quantification of the counterclaim amount;
¢. any comment in response to any statements contained in the Notice of Arbitration under Rule 3.1 or
any comment with respect to the matters covered in such Rule;
d. unless otherwise agreed by the Parties, the nomination of its arbitrator(s) if the arbitration clause pro-
vides for three or more arbitrators or, if the arbitration clause provides for a sole arbitrator, comments
on the Claimant’s proposal for a sole arbitrator or a counter-proposal; and ©
e. payment of the requisite filing fee under these Rules for any counterclaim.
The Respondent shall, at the same time as it files the Response with the Registrar, send a copy of the 4.2
Response to the Claimant, and shall notify the Registrar that it has done so, specifying the mode of service
employed and the date of service.

5. Number and Appointment of Arbitrators

The Parties may agree that the Tribunal shall be composed of one, three or any other odd number of 5.1
arbitrators.
Three arbitrators shall be appointed in any arbitration under these Rules unless the Parties have otherwise 5.2
agreed; or it appears to the Court, giving due regard to any proposals by the Parties, that the complexity,
the quantum involved or other relevant circumstances of the dispute, warrants the appointment of a sole
arbitrator.
If the Parties have agreed that any arbitrator is to be appointed by one or more of the Parties, or by any 5.3
third person including bythe arbitrators already appointed, that agreement shall bedeemed anagreement
to nominate an arbitrator under these Rules.
Inallcases, the arbitrators nominated by the Parties, orbyany third person inclby g
the arbitrators
udin 5.4
already appointed, shall be subject toappointment by the Court initsdiscretion.

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ee
—E eee

55 The Court shall appoint an arbitrator as soon as practicable. Any decision by the Court to appoint an
arbitrator under these Rules shall be final and not subject to appeal.
5.6 The Court may appoint an arbitrator whose appointment has already been suggested or proposed in the
arbitral proceedings.
5.7 Where the Parties are of different nationalities, the Court shall appoint a sole arbitrator or a presid-
ing arbitrator ofa different nationality than the Parties, unless the Parties have otherwise agreed or
unless the Court otherwise determines it to be appropriate having regard to the circumstances of
the case.
5.8 The terms of appointment of each arbitrator shall be fixed by the Registrar in accordance with these
Rules and any Practice Notes for the time being in force, or in accordance with the agreement of the
Parties.

6. Sole Arbitrator
6.1 Ifa sole arbitrator is to be appointed, either Party may propose to the other Party the names of one or more
persons to serve as the sole arbitrator. Where the Parties have reached an agreement on the nomination of
a sole arbitrator, Rule 5.4 shall apply.
6.2 If within 42 days after the date of commencement of the arbitration, or within the period otherwise
agreed by the Parties or set by the Registrar, the Parties have not reached an agreement on the nomination
of a sole arbitrator, or if at any time either Party so requests, the Court shall appoint the sole arbitrator in
accordance with the procedure under Rule 8.

7. Multiple Arbitrators
mn If three or more arbitrators are to be appointed, the Claimant and the Respondent shall each nominate
an equal number of arbitrators.
7.2 If a Party fails to nominate its arbitrator(s) within 35 days after receipt of the other Party's nomination
of its arbitrator(s), or within the period otherwise agreed by the Parties or set by the Registrar, the Court
shall proceed to appoint the arbitrator(s) on its behalf.
23 Unless the Parties have agreed upon another procedure for appointing the presiding arbitrator, or if
such agreed procedure does not result in a nomination within the period agreed by the Parties or set by
the Registrar, the Court shall appoint the presiding arbitrator in accordance with the procedure under
Rule 8.

8. Appointment of Arbitrators by the Court

In making the appointment of the arbitrator(s) under Rule 6.2, Rule 7.3, Rule 9.1 and Rule 9.2, the
Court shall use the following list-procedure, unless the Parties agree that the list-procedure shall not be
used or unless the Court determines, in its discretion, that the use of the list-procedure is not appropriate
for the case:
a. The Court shall invite the Parties’ views on any qualifications of the arbitrator(s) prior to compiling
the list of candidates. The Court shall not be bound by the Parties’ recommendations, but it shall
take the Parties’ views and the circumstances of the case into account when compiling the list of
candidates.
b, The Court shall communicate to each of the Parties an identical list containing at least five names.
c. Within 15 days after the receipt of such list, or within the period otherwise agreed by the Parties or
set by the Registrar, each Party shall return the list directly to the Registrar, without need to copy
in the other Party, after having deleted the name or names to which it objects and numbered the
remaining names on the list in the order of its preference.
d, After the expiry of the above period of time, the Court shall appoint the arbitrator(s) from among the
names approved on the lists returned to the Registrar and in accordance with the order of preference
indicated by the Parties.
e. Ifforany reason the appointment cannot be made according to this procedure, the Court may exercise
its discretion in appointing the arbitrator(s), including appointing the arbitrator(s) from outside the
list communicated to the Parties.

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9. Multi-Party Appointment of Arbitrators

Where there are more than two Parties to the arbitration, and a sole arbitrator is to be appointed, the 9.1
Parties may agree to jointly nominate the sole arbitrator. In the absence of such joint nomination having
been made within 42 days of the date of commencement ofthe arbitration or within the period otherwise
agreed by the Parties or set by the Registrar, the Court shall appoint the sole arbitrator in accordance with
the procedure under Rule 8.
Where there are more than two Parties to the arbitration, and three or more arbitrators are to be appointed, 9.2
the Claimant(s) and Respondent(s) shall each jointly nominate an equal number of arbitrators. The
presiding arbitrator shall be appointed in accordance with Rule 7.3. In the absence of both such joint
nominations having been made within 42 days of the date of commencement of the arbitration or within
the period otherwise agreed by the Parties or set by the Registrar, the Court shall appoint all the arbitra-
tors in accordance with the procedure under Rule 8 and shall designate one of them to be the presiding
arbitrator.

10. Qualifications of Arbitrators

Any arbitrator appointed in an arbitration under these Rules, whether or not nominated by the Parties, 10.1
shall be and remain at all times independent and impartial.
In appointing an arbitrator under these Rules, the Court shall have due regard to any qualifications 10.2
required of the arbitrator by the agreement of the Parties and to such considerations that are relevant to
the impartiality or independence of the arbitrator.
The Court shall also consider whether the arbitrator has sufficient availability to determine the case in a 10.3
prompt and efficient manner that is appropriate given the nature of the arbitration.
A nominated arbitrator shall disclose to the Parties and to the Registrar any circumstances that may give 10.4
rise to justifiable doubts as to his impartiality or independence as soon as reasonably practicable and in
any event before his appointment.
An arbitrator shall immediately disclose to the Parties, to the other arbitrators and to the Registrar any 10.5
circumstances that may give rise to justifiable doubts as to his impartiality or independence that may be
discovered or arise during the arbitration.
No Party or person acting on behalf of a Party shall have any ex parte communication relating to the 10.6
case with any arbitrator or with any candidate for appointment as party-nominated arbitrator, except
to advise the candidate of the general nature of the controversy and of the anticipated proceedings;
to discuss the candidate’s qualifications, availability or independence in relation to the Parties; or
to discuss the suitability of candidates for selection as the presiding arbitrator where the Parties or
Party-nominated arbitrators are to participate in that selection. No Party or person acting on behalf
of a Party shall have any ex parte communication relating to the case with any candidate for presiding
arbitrator.

11. Challenge of Arbitrators

Any arbitrator may be challenged ifcircumstances exist that give rise to justifiable doubts as to the arbitra- 11.1
tor’s impartiality or independence or ifthe arbitrator does not possess any requisite qualification on which

A Party may challenge the arbitrator nominated by it only for reasons of which it becomes aware after the 11.2
appointment has been made.

12. Notice of Challenge

A Party that intends tochallenge anarbitrator shall filea notice of challenge with the Registrar inaccord- 12.1
ance with the requirements of Rule 12.2 within 28 days after receipt of the notice of appointment of the
arbitrator who isbeing challenged or within 28 days after thecircumstances specified inRule 11.1 or Rule
11.2 became known or should have reasonably been known to that Party.
The notice ofchallenge shall state the reasons for the challenge. The date ofreceipt ofthenotice ofchal- 12.2
lenge bytheRegistrar shall bedeemed tobethedatethenotice ofchallenge isfiled. ThePartychallenging

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an arbitrator shall, at the same time as it files a notice of challenge with the Registrar, send the notice of
challenge to the other Party, the arbitrator who is being challenged and the other members of the Tribunal
(or if the Tribunal has not yet been constituted, any appointed arbitrator), and shall notify the Registrar
thar it has done so, specifying the mode of service employed and the date of service.
12.3 The Party making the challenge shall pay the requisite challenge fee under these Rules in accordance with
the applicable Schedule of Fees. If the Party making the challenge fails to pay the challenge fee within the
time limit set by the Registrar, the challenge shall be considered as withdrawn.
12.4 After receipt of a notice of challenge under Rule 12.2, the Registrar may order a suspension of the arbitral
proceedings until the challenge is resolved. Unless the Registrar orders the suspension of the arbitral pro-
ceedings pursuant to this Rule 12.4, the challenged arbitrator shall be entitled to continue to participate
in the arbitration pending the determination of the challenge by the Court in accordance with Rule 13.
12.5 Where an arbitrator is challenged by a Party, the other Party may agree to the challenge, and the Court
shall remove the arbitrator if all Parties agree to the challenge. The challenged arbitrator may also volun-
tarily withdraw from office. In neither case does this imply acceptance of the validity of the grounds for
the challenge.
12.6 If an arbitrator is removed or withdraws from office in accordance with Rule 12.5, a substitute arbitrator
shall be appointed in accordance with the procedure applicable to the nomination and appointment of
the arbitrator being replaced. This procedure shall apply even if, during the process of appointing the chal-
lenged arbitrator, a Party failed to exercise its right to nominate an arbitrator. The time limits applicable
to the nomination and appointment of the substitute arbitrator shall commence from the date of receipt
of the agreement of the other Party to the challenge or the challenged arbitrator's withdrawal from office.

13. Decision on Challenge

13.1 If, within 21 days of receipt of the notice of challenge under Rule 12, the other Party does not agree to the
challenge and the arbitrator who is being challenged does not withdraw voluntarily from office, the Court
shall decide the challenge. The Court may request comments on the challenge from the Parties, the chal-
lenged arbitrator and the other members of the Tribunal (or if the Tribunal has not yet been constituted,
any appointed arbitrator), and set a schedule for such comments to be made.
13.2 If the Court accepts the challenge to an arbitrator, the Court shall remove the arbitrator, and a substitute
arbitrator shall be appointed in accordance with the procedure applicable to the nomination and appoint-
ment of the arbitrator being replaced. The time limits applicable to the nomination and appointment of
the substitute arbitrator shall commence from the date of the Registrar’s notification to the Parties of the
decision by the Court.
13.3 If the Court rejects the challenge to an arbitrator, the challenged arbitrator shall continue with the
arbitration.
13.4 The Court’s decision on any challenge to an arbitrator under this Rule 13 shall be reasoned, unless other-
wise agreed by the Parties, and shall be issued to the Parties by the Registrar. Any such decision on any
challenge by the Court shall be final and not subject to appeal.

14. Replacement of an Arbitrator

14.1 Except as otherwise provided in these Rules, in the event of the death, resignation, withdrawal or removal
of an arbitrator during the course of the arbitral proceedings, a substitute arbitrator shall be appointed
in accordance with the procedure applicable to the nomination and appointment of the arbitrator being
replaced.
14.2 In the event that an arbitrator refuses or fails to act or perform his functions in accordance with these
Rules or within prescribed time limits, or in the event of any de jure or de facto impossibility by an arbitra-
tor to act or perform his functions, the procedure for challenge and replacement of an arbitrator provided
in Rule 11 to Rule 13 and Rule 14.1 shall apply.
14.3 The Court may, at its own initiative and in its discretion, remove an arbitrator who refuses or fails to act or
to perform his functions in accordance with these Rules or within prescribed time limits, or in the event
of a de jure or de facto impossibility of an arbitrator to act or perform his functions, or if the arbitrator
does not conduct or participate in the arbitration with due diligence and/or in a manner that ensures the

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fair, expeditious, economical and final resolution of the dispute. The Court shall consult the Parties and
the members of the Tribunal, including the arbitrator to be removed (or if the Tribunal has not yet been
constituted, any appointed arbitrator) prior to the removal of an arbitrator under this Rule 14.3.

15. Repetition of Hearings in the Event of Replacement of an Arbitrator

If the sole or presiding arbitrator is replaced in accordance with the procedure in Rule 12 to Rule 14, any
hearings held previously shall be repeated unless otherwise agreed by the Parties. If any other arbitrator is
replaced, any hearings held previously may be repeated at the discretion of the Tribunal after consulting
with the Parties. If the Tribunal has issued an interim or partial Award, any hearings relating solely to that
Award shall not be repeated, and the Award shall remain in effect.

16. Conduct of the Proceedings

The Tribunal shall conduct the arbitration in such manner as it considers appropriate, after consulting 16.1
with the Parties, to ensure the fair, expeditious, economical and final resolution of the dispute.
The Tribunal shall determine the relevance, materiality and admissibility of all evidence. The Tribunal is 16.2
not required to apply the rules of evidence of any applicable law in making such determination.
As soon as practicable after the constitution of the Tribunal, the Tribunal shall conduct a preliminary 16.3
meeting with the Parties, in person or by any other means, to discuss the procedures that will be most
appropriate and efficient for the case.
The Tribunal may, in its discretion, direct the order of proceedings, bifurcate proceedings, exclude cumu- 16.4
lative or irrelevant testimony or other evidence and direct the Parties to focus their presentations on issues
the decision of which could dispose of all or part of the case.
Unless otherwise agreed by the Parties, the presiding arbitrator may make procedural rulings alone, sub- 16.5
ject to revision by the Tribunal.
All statements, documents or other information supplied to the Tribunal and/or the Registrar by a Party 16.6
shall simultaneously be communicated to the other Party.
The Court may, at any stage of the proceedings, request the Parties and the Tribunal to convene a meeting 16.7
to discuss the procedures that will be most appropriate and efficient for the case. Such meeting may be
conducted in person or by any other means.

17. Submissions by the Parties

Unless otherwise agreed by the Parties or otherwise determined by the Tribunal, the submission of written 17.19
statements shall proceed as set out in this Rule 17.
The Claimant shall, within a period of time to be determined by the Tribunal, send to the Respondent 17.2
and the Tribunal a Memorial, setting out in full detail:
a. astatement of facts supporting the claim;
b. the legal grounds or arguments supporting the claim;
c. any witness statement and/or expert report supporting the claim; and
d. the relief claimed together with the amount of all quantifiable claims.
The Respondent shall, within a period of time to be determined by the Tribunal, send to the Claimant 17.3
and the Tribunal a Counter-Memorial, setting out in full detail:
a. astatement of facts supporting the defence and any counterclaim;
b. the legal grounds or arguments supporting the defence and any counterclaim;
c. any witness statement and/or expert report supporting the defence and any counterclaim; and
d. the relief claimed together with the amount of all quantifiable counterclaims.
By agreement of the Parties or ifdeemed necessary by the Tribunal, the Parties shall file a Reply and 17.4
Rejoinder within a period oftime to bedetermined by the Tribunal.
A Party may amend itsclaim, counterclaim orother submissions unless the Tribunal considers it inappro- 17.5
priate toallow such amendment having regard to thedelay inmakingit or prejud ice
to the other Party or

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any other circumstances. However, a claim or counterclaim may not be amended in such a manner that
the amended claim or counterclaim falls outside the scope of the arbitration clause.
17.6 The Tribunal shall decide which further submissions shall be required from the Parties or may be pre-
sented by them. The Tribunal shall fix the periods of time for communicating such submissions.
17.7 All submissions referred to in this Rule 17 shall be accompanied by copies of all supporting documents
and legal authorities which have not previously been submitted by any Party.
17.8 If the Claimant fails within the time specified to submit its Memorial, the Tribunal may issue an order for
the termination of the arbitral proceedings or give such other directions as may be appropriate.
17.9 If the Respondent fails to submit its Counter-Memorial, or if at any point any Party fails to avail itself
of the opportunity to present its case in the manner directed by the Tribunal, the Tribunal may proceed
with the arbitration.

18. Seat of the Arbitration

18.1 The Parties may agree on the seat of the arbitration. Failing such an agreement, the seat of the arbitration
shall be determined by the Tribunal, having regard to all the circumstances of the case.
18.2 The Tribunal may hold hearings and meetings by any means it considers expedient or appropriate and at
any location it considers convenient or appropriate.

19. Language of the Arbitration

19.1 Unless otherwise agreed by the Parties, the Tribunal shall determine the language to be used in the
arbitration.
19.2 If a Party submits a document written in a language other than the language(s) of the arbitration, the
Tribunal, or if the Tribunal has not been constituted, the Registrar, may order that Party to submit a
translation in a form to be determined by the Tribunal or the Registrar.

20. Party Representatives

20.1 Any Party may be represented by legal practitioners or any other authorised representatives. The Registrar
and/or the Tribunal may require proof of authority of any Party representatives.
20.2 After the constitution of the Tribunal, any change or addition by a Party to its representatives shall be
promptly communicated in writing to the Parties, the Tribunal and the Registrar.

21. Hearings
21.1 Unless otherwise agreed by the Parties, the Tribunal shall, if either Party so requests or the Tribunal so
decides, hold one or more hearings for the presentation of evidence and/or for oral submissions on the
merits of the dispute, including any issue as to jurisdiction or bifurcation.
21.2 The Tribunal shall, after consultation with the Parties, set the date, time and place of any meeting or hear-
ing and shall give the Parties reasonable notice.
21.3 If any Party fails to appear at a meeting or hearing without showing sufficient cause for such failure,
the Tribunal may proceed with the arbitration and may make the Award based on the submissions and
evidence before it.
21.4 Unless otherwise agreed by the Parties, all meetings and hearings shall be in private, and any recordings,
transcripts, or documents used in relation to the arbitral proceedings shall remain confidential.

22. Witnesses
22.1 Before any hearing, the Tribunal may require the Parties to give notice of the identity of witnesses, includ-
ing expert witnesses, whom the Parties intend to produce, the subject matter of their testimony and its
relevance to the issues.
22.2 The Tribunal may allow, refuse or limit the appearance of witnesses to give oral evidence at any hearing.

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Any witness who gives oral evidence may be questioned by each of the Parties, their represen
tatives and 22.3
the Tribunal in such manner as the Tribunal may determine.
the Tribunal may direct the testimony of witnesses to be presented in written form, either as signed state-
22.4
ments or sworn affidavits or any other form of recording. Subject to Rule 22.2, any Party may request
that such a witness should attend for oral examination. If the witness fails to attend for oral examination,
the Tribunal may place such weight on the written testimony as it thinks fit, disregard such testimony, or
exclude such testimony altogether.
It shall be permissible for any Party or its representatives to interview any witness or potential witness 22.5
(that may be presented by thar Party) prior to his appearance to give oral evidence at any hearing.

23. Tribunal-Appointed Experts

Unless otherwise agreed by the Parties, the Tribunal may: 23.1
a. following consultation with the Parties, appoint an expert to report on specific issues; and
b. require a Party to give any expert appointed under Rule 23.1(a) any relevant information, or to prod-
uce or provide access to any relevant documents, goods or property for inspection.
Any expert appointed under Rule 23.1(a) shall submit a report in writing to the Tribunal. Upon receipt 23.2
of such written report, the Tribunal shall deliver a copy of the report to the Parties and invite the Parties
to submit written comments on the report.
Unless otherwise agreed by the Parties, if the Tribunal considers it necessary or at the request of any Party, 23.3
an expert appointed under Rule 23.1(a) shall, after delivery of his written report, participate in a hearing.
At the hearing, the Parties shall have the opportunity to examine such expert.

24. Additional Powers of the Tribunal

Unless otherwise agreed by the Parties, in addition to the other powers specified in these Rules, and
except as prohibited by the mandatory rules of law applicable to the arbitration, the Tribunal shall have
the power to:
a. order the correction or rectification of any contract, subject to the law governing such contract;
b. except as provided in these Rules, extend or abbreviate any time limits prescribed under these Rules
or by its directions;
c. conduct such enquiries as may appear to the Tribunal to be necessary or expedient;
d. order the Parties to make any property or item in their possession or control available for inspection;
e. order the preservation, storage, sale or disposal of any property or item which is or forms part of the
subject-matter of the dispute; .
f. order any Party to produce to the Tribunal and to the other Parties for inspection, and to supply copies
of, any document in their possession or control which the Tribunal considers relevant to the case and
material to its outcome;
g. issue an order or Award for the reimbursement of unpaid deposits towards the costs of the
arbitration;
h. direct any Party or person to give evidence by affidavit or in any other form;
i. direct any Party to take or refrain from taking actions to ensure that any Award which may be made in
the arbitration is not rendered ineffectual by the dissipation of assets by a Party or otherwise;
order any Party to provide security for legal or other costs in any manner the Tribunal thinks fit;
order any Party to provide security for all or part of any amount in dispute in the arbitration;
Cal order the disclosure of the existence of a Party's third-party funding arrangement and/or the identity
i
of the third-party funder and, where appropriate, details of the third-party funder's interest in the out-
come of the proceedings, and/or whether or not the third-party funder has committed to undertake

m. proceed with the arbitration notwithstanding the failure orrefusal of any Party to comply with these
Rules orwith the Tribunal’s orders ordirections or any partial Award orto attend any meeting or hearing,
and to impose such sanctions asthe Tribunal deems appropriate inrelation to such failure or refusal;

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n. decide, where appropriate, any issue not expressly or impliedly raised in the submissions of a Party
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;
o. determine the law applicable to any aspect of the arbitration; and
p. determine any claim of legal or other privilege.

25. Jurisdiction of the Tribunal

25.1 If any Party objects to the existence or validity of the arbitration clause, the applicability of these Rules or
the competence of SIAC to administer the arbitration, before the Tribunal is constituted, the Registrar
shall determine if such objection shall be referred to the Court. If the Registrar so determines, the Court
shall decide if it is prima facie satisfied that the arbitration shall proceed. The arbitration shall be termi-
nated if the Court is not so satisfied. Any decision by the Registrar or the Court that the arbitration shall
proceed is without prejudice to the power of the Tribunal to rule on its own jurisdiction.
25.2 The Tribunal shall have the power to rule on its own jurisdiction, including any objections with respect
to the existence, validity or scope of the arbitration clause or the admissibility of any claim or counter-
claim. An arbitration clause which forms part of a contract, treaty, statute or other instrument shall be
treated as a clause independent of the other terms of the contract, treaty, statute or other instrument.
A decision by the Tribunal that the contract, treaty, statute or other instrument is null and void shall not
entail ipso jure the invalidity of the arbitration clause, and the Tribunal shall not cease to have jurisdic-
tion by reason of any allegation that the contract, treaty, statute or other instrument is non-existent or
null and void.
25.3 Any objection that the Tribunal:
a. does not have jurisdiction shall be raised no later than in a Counter-Memorial or in a Rejoinder; or at
the equivalent stage of the proceedings, as determined by the Tribunal, if an alternate form of written
submissions has been adopted pursuant to Rule 17.1; or
b. is exceeding the scope of its jurisdiction shall be raised within 28 days after the matter alleged to be
beyond the scope of the Tribunal’s jurisdiction arises during the arbitration.
The Tribunal may admit an objection raised by a Party outside the time limits under this Rule 25.3 if it
considers the delay justified. A Party is not precluded from raising an objection under this Rule 25.3 by
the fact that it has nominated, or participated in the nomination of, an arbitrator.
25.4 The Tribunal may rule on an objection referred to in Rule 25.3 either as a preliminary question or in an
Award on the merits.
25.5 A Party may rely on aclaim or defence for the purpose of a set-off to the extent permitted by these Rules
and the applicable law.

26. Early Dismissal of Claims and Defences

26.1 A Party may apply to the Tribunal for the early dismissal of a claim or defence on the basis that:
a. aclaim or defence is manifestly without legal merit;
b. aclaim or defence is manifestly outside the jurisdiction of the Tribunal; or
c. aclaim or defence is manifestly inadmissible.
26.2 An application for the early dismissal of a claim or defence under Rule 26.1 shall state in detail the facts
and legal basis supporting the application. The Party applying for early dismissal shall, at the same time
as it files the application with the Tribunal, send a copy of the application to the other Party, and shall
notify the Tribunal that it has done so, specifying the mode of service employed and the date of service.
26.3 The Tribunal may, in its discretion, allow the application for the early dismissal of a claim or defence
under Rule 26.1 to proceed. If the application is allowed to proceed, the Tribunal shall, after giving the
Parties the opportunity to be heard, decide whether to grant, in whole or in part, the application for early
dismissal under Rule 26.1.
26.4 If the application is allowed to proceed, the Tribunal shall make an order or Award on the applica-
tion, with reasons, which may be in summary form. The order or Award shall be made within 90 days
the date of filing of the application, unless, in exceptional circumstances, the Registrar extends
the time.

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27. Interim and Emergency Interim Relief

The Tribunal may, at the request ofaParty, issue an order or an Award granting an injunction or any
other 27.1
interim relief it deems appropriate. The Tribunal may order the Party requesting interim relief to provide
appropriate security in connection with the relief sought.
A request for interim relief made by a Party to a judicial authority prior to the constitution ofthe Tribunal,
27.2
or in exceptional circumstances thereafter, is not incompatible with these Rules.
If a Party makes a request for interim relief prior to the constitution of the Tribunal, the Registrar may, 27.3
on the application of either Party, fix time limits for the Parties to file written submissions on the request.
The request for interim relief and any written submissions shall be forwarded to the Tribunal upon its
constitution,
If the Parties expressly agree on the application of the Emergency Arbitrator provisions set forth in 27.4
Schedule 1, a Party in need of emergency interim relief prior to the constitution of the Tribunal may apply
for such relief pursuant to the procedures set forth in Schedule 1.

28. Applicable Law, Amiable Compositeur and ExAequo et Bono

The Tribunal shall apply the law or rules of law designated by the Parties as applicable to the substance of 28.1
the dispute. Failing such designation by the Parties, the Tribunal shall apply the law or rules of law which
it determines to be appropriate, including any relevant national laws of any State, any relevant inter-
national treaties and custom and general principles of law.
The Tribunal shall decide as amiable compositeur or ex aequo et bono only if the Parties have expressly 28.2
authorised it to do so.
In all cases, the Tribunal shall decide in accordance with the terms of the contract, treaty, statute or other 28.3
instrument, if any, and shall take into account any applicable usage of trade.

29. Third-Party Submissions

By written notice to the Registrar and the Parties, a Non-disputing Contracting Party may make written 29.1
submissions to the Tribunal, but only on a question of treaty interpretation that is directly relevant to
the dispute. The Tribunal may also, after considering the views of the Parties and having regard to the
circumstances of the case, invite written submissions from a Non-disputing Contracting Party under this
Rule 29.1. )
By written notice to the Registrar and the Parties, a Non-disputing Contracting Party or Non- disputing 29.2
Party may apply to the Tribunal for the right to make written submissions regarding a matter within the
scope of the dispute. The Tribunal may also, after considering the views of the Parties and having regard
to the circumstances of the case, invite written submissions from a Non-disputing Contracting Party or
Non-disputing Party under this Rule 29.2.
In determining whether to allow an application under Rule 29.2 to proceed, the Tribunal shall consider 29.3
the views of the Parties and, among other things, the extent to which:
a. the Non-disputing Contracting Party’s or Non-disputing Party’s written submissions would assist the
Tribunal in the determination of a factual or legal issue related to the proceedings by bringing a per-
spective, particular knowledge or insight that is different from that of the Parties;
b. the Non-disputing Contracting Party’s or Non-disputing Party’s written submissions would only
address a matter within the scope of the dispute;
c. the Non-disputing Contracting Party or Non-disputing Party has a sufficient interest in the arbitral
proceedings and/or any other related proceedings; and
d. allowing the written submissions would violate the Parties’ right to confidentiality.
n-disputing Contracting or Non-disputing Party that files any written submissions under 29.4
sahale29 shall be deemed to pada ee ee by SIAC in accordance with these Rules
and submitted to the authority of the Tribunal.
The Tribunal may, where appropriate, determine the form and content of any written submissions under 29.5
this Rule 29. The Parties shall have the right to respond to such written submissions.

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a mene emmen

29.6 The Tribunal shall decide which further written submissions shall be required from a Non-disputing
time for communicating
Contracting Party or Non-disputing Party. The Tribunal shall fix the periods of
such written submissions.
29.7 The Tribunal may, ifeither Party so requests or the Tribunal so decides, hold a hearing for a Non-disputing
Contracting Party or Non-disputing Party to elaborate on or be examined on its written submissions.
29.8 The Tribunal may order that a Non-disputing Contracting Party or Non-disputing Party be provided
with access to documents related to the proceedings, including submissions, evidence, orders, decisions,
Awards and any other documents produced by the Parties or any Non-disputing Contracting Party or
Non-disputing Party as may be necessary for its participation in the arbitration. The Tribunal shall take
appropriate measures to safeguard the confidentiality of information related to the proceedings as set out
in Rule 37.
29.9 The Tribunal shall take reasonable steps to ensure, with respect to all submissions under this Rule 29, that
the submissions do not unreasonably disrupt the arbitration or unduly burden or unfairly prejudice any
of the Parties.
29.10 The Tribunal may refer to and rely on a Non-disputing Contracting Party's and/or Non-disputing Party's
submissions in its orders, decisions and Awards.

30. Award
30.1 The Tribunal shall, as promptly as possible, after consulting with the Parties and upon being satisfied that
the Parties have no further relevant and material evidence to produce or submissions to make with respect
to the matters to be decided in the Award, declare the proceedings closed. The Tribunal’s declaration that
the proceedings are closed shall be communicated to the Parties and to the Registrar.
30.2 The Tribunal may, on its own motion or upon application of a Party but before any Award is made,
re-open the proceedings. The Tribunal’s decision that the proceedings are to be re-opened shall be com-
municated to the Parties and to the Registrar. The Tribunal shall close any re-opened proceedings in
accordance with Rule 30.1.
30.3 Before making any Award, the Tribunal shall submit such Award in draft form to the Registrar. Unless the
Registrar extends the period of time or unless otherwise agreed by the Parties, the Tribunal shall submit
the draft Award to the Registrar not later than 90 days from the date on which the Tribunal declares the
proceedings closed. The Registrar may, as soon as practicable, suggest modifications as to the form of the
Award and, without affecting the Tribunal’s liberty to decide the dispute, draw the Tribunal’s attention to
points of substance. No Award shall be made by the Tribunal until it has been approved by the Registrar
as to its form.
30.4 The Award shall be in writing and shall state the reasons upon which it is based unless the Parties have
agreed that no reasons are to be given.
30.5 Unless otherwise agreed by the Parties, the Tribunal may make separate Awards on different issues at
different times.
30.6 If any arbitrator fails to cooperate in the making of the Award, having been given a reasonable oppor-
tunity to do so, the remaining arbitrators may proceed. The remaining arbitrators shall provide written
notice of such refusal or failure to the Registrar, the Parties and the absent arbitrator. In deciding whether
to proceed with the arbitration in the absence of an arbitrator, the remaining arbitrators may take into
account, among other things, the stage of the arbitration, any explanation provided by the absent arbitra-
tor for his refusal to participate and the effect, if any, upon the enforceability of the Award should the
remaining arbitrators proceed without the absent arbitrator. The remaining arbitrators shall explain in
any Award made the reasons for proceeding without the absent arbitrator.
30.7 Where there is more than one arbitrator, the Tribunal shall decide by a majority. Failing a majority deci-
sion, the presiding arbitrator alone shall make the Award for the Tribunal.
30.8 The Award shall be delivered to the Registrar, who shall transmit certified copies to the Parties upon full
settlement of the costs of the arbitration.
30.9 The Tribunal may award simple or compound interest on any sum which is the subject of the arbi-
tration at such rates as the Parties may have agreed or, in the absence of such agreement, as the

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[ribunal determines to be appropriate, in respect of any period which the Tribunal determines to be
appropriate.
In the event of a settlement, and if the Parties so request, the Tribunal may make a consent Award record- 30.10
ing the settlement. If the Parties do not require a consent Award, the Parties shall confirm to the Registrar
that a settlement has been reached, following which the Tribunal shall be discharged and the arbitration
concluded upon full settlement of the costs of the arbitration.
Subject to Rule 31 (and Schedule | if expressly agreed), by agreeing to arbitration under these Rules, the 30.11
Parties agree that any Award shall be final and binding on the Parties from the date it is made, and under-
take to carry out the Award immediately and without delay. The Parties also irrevocably waive their rights
to any form of appeal, review or recourse to any State court or other judicial authority with respect to such
Award insofar as such waiver may be validly made.

31. Correction of Awards, Interpretation of Awards and

Additional Awards
Within 30 days of receipt of an Award, a Party may, by written notice to the Registrar and the other Parry, 31.1
request the Tribunal to correct in the Award any error in computation, any clerical or typographical error
or any error of a similar nature. If the Tribunal considers the request to be justified, it shall make the
correction within 30 days of receipt of the request. Any correction, made in the original Award or in a
separate memorandum, shall constitute part of the Award.
The Tribunal may correct any error of the type referred to in Rule 31.1 on its own initiative within 30 days 31.2
of the date of the Award.
Within 30 days of receipt of an Award, a Party may, by written notice to the Registrar and the other Party, 31.3
request the Tribunal to make an additional Award as to claims presented in the arbitration but not dealt
with in the Award. If the Tribunal considers the request to be justified, it shall make the additional Award
within 45 days of receipt of the request.
Within 30 days of receipt of an Award, a Party may, by written notice to the Registrar and the other 31.4
Party, request the Tribunal to give an interpretation of the Award. If the Tribunal considers the request
to be justified, it shall provide the interpretation in writing within 45 days of receipt of the request. The
interpretation shall form part of the Award.
‘The Registrar may, if necessary, extend the period of time within which the Tribunal shall make a correc- 31.5
tion of an Award, interpretation of an Award or an additional Award under this Rule 31.
‘The provisions of Rule 30 shall apply in the same manner with the necessary or appropriate changes in 31.6
relation to a correction of an Award, interpretation of an Award and to any additional Award made.

32. Fees and Deposits

The Tribunal’s fees and SIAC’s fees shall be ascertained in accordance with the applicable Schedule of Fees 32.1
in force at the time of commencement of the arbitration. The Parties may agree to alternative methods of
determining the Tribunal’s fees prior to the constitution of the Tribunal.
The Registrar shall fix the amount of deposits payable towards the costs of the arbitration. Unless the 32.2
Registrar directs otherwise, 50% of such deposits shall be payable by the Claimant and the remaining
50% of such deposits shall be payable by the Respondent. The Registrar may fix separate deposits on costs
for claims and counterclaims, respectively.
Where the amount of the claim or the counterclaim is not quantifiable at the time payment is due, a 32.3
provisional estimate of the costs of the arbitration shall be made by the Registrar. Such estimate may be
based on the nature of the controversy and the circumstances of the case. This estimate may be adjusted
in light of such information as may subsequently become available.
The Registrar may from time to time direct Parties to make further deposits towards the costs ofthe 32.4

The Parti es andseverally liable forthecosts ofthearbitration. Any Party isfreeto pay the whole 32.5
arejointly
ofthe deposits towards the costs ofthearbitration should the other Party failto payitsshare.
Ifa Party fails to pay the deposits directed bythe Registrar either wholly or inpart: 32.6

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a. the Tribunal may suspend its work and the Registrar may suspend SIAC’s administration ofthe arbi-
tration, in whole or in part; and
b. the Registrar may, after consultation with the Tribunal (if constituted) and after informing the Parties,
set a time limit on the expiry of which the relevant claims or counterclaims shall be considered as
withdrawn without prejudice to the Party reintroducing the same claims or counterclaims in another
proceeding.
32.7 In all cases, the costs of the arbitration shall be finally determined by the Registrar at the conclusion of
the proceedings. If the claim and/or counterclaim is not quantified, the Registrar shall finally determine
the costs of the arbitration, as set out in Rule 33, in his discretion. The Registrar shall have regard to all
the circumstances of the case, including the stage of proceedings at which the arbitration concluded.
In the event that the costs of the arbitration determined are less than the deposits made, there shall be a
refund in such proportions as the Parties may agree, or failing an agreement, in the same proportions as
the deposits were made.
32.8 All deposits towards the costs of the arbitration shall be made to and held by SIAC. Any interest which
may accrue on such deposits shall be retained by SIAC.
32.9 In exceptional circumstances, the Registrar may direct the Parties to pay an additional fee, in addition to
that prescribed in the applicable Schedule of Fees, as part of SIAC’s administration fees.

33. Costs of the Arbitration

33.1 Unless otherwise agreed by the Parties, the Tribunal shall specify in the Award the total amount of the
costs of the arbitration. Unless otherwise agreed by the Parties, the Tribunal shall determine in the Award
the apportionment of the costs of the arbitration among the Parties. The Tribunal may take into account
any third-party funding arrangements in apportioning the costs of the arbitration.
33.2 The term “costs of the arbitration” includes:
a. the Tribunal’s fees and expenses and the Emergency Arbitrator’s fees and expenses where applicable;
b. SIAC’s administrative fees and expenses; and
c. the costs of any expert appointed by the Tribunal and of any other assistance reasonably required by
the Tribunal.

34. Tribunal’s Fees and Expenses

34.1 The fees of the Tribunal shall be fixed by the Registrar in accordance with the applicable Schedule of Fees
or, ifapplicable, with the method agreed by the Parties pursuant to Rule 32.1, and the stage of the proceed-
ings at which the arbitration concluded. In exceptional circumstances, the Registrar may determine that
an additional fee over that prescribed in the applicable Schedule of Fees shall be paid.
34.2 The Tribunal’s reasonable out-of-pocket expenses necessarily incurred and other allowances shall be reim-
bursed in accordance with the applicable Practice Note.

35. Party’s Legal and Other Costs

The Tribunal shall have the authority to order in its Award that all or a part of the legal or other costs
of a Party be paid by another Party. The Tribunal may take into account any third-party funding
arrangements in ordering in its Award that all or a part of the legal or other costs of a Party be paid by
another Party.

36. Exclusion of Liability

36.1 Any arbitrator, including any Emergency Arbitrator, any person appointed by the Tribunal, including
any administrative secretary and any expert, the President, members of the Court, and any directors,
officers and employees of SIAC, shall not be liable for any negligence, act or omission in connection with
any arbitration administered by SIAC in accordance with these Rules.
36.2 SIAC, including the President, members of the Court, directors, officers, employees or any arbitrator,
including any Emergency Arbitrator, and any person appointed by the Tribunal, including any adminis-
trative secretary and any expert, shall not be under any obligation to make any statement in connection
with any arbitration administered by SIAC in accordance with these Rules, The President, any member

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of the Court, director, officer, employee of SLAC, or any arbitrator, including any Emergency Arbitrator,
and any person appointed by the Tribunal, including any administrative secretary and any expert, shall
not be required to act as a witness in any legal proceedings in connection with any arbitration adminis-
tered by SIAC in accordance with these Rules.

37. Confidentiality
Unless otherwise agreed by the Parties, any Party, Non-disputing Contracting Party and Non-disputing 37.1
Party, and any arbitrator, including any Emergency Arbitrator, and any person appointed by the Tribunal,
including any administrative secretary and any expert, shall at all times treat all matters relating to the
proceedings and the Award as confidential. The discussions and deliberations of the Tribunal shall be
confidential.
Unless otherwise agreed by the Parties, any Party, Non-disputing Contracting Party and Non-disputing 37.2
Party, and any arbitrator, including any Emergency Arbitrator, and any person appointed by the Tribunal,
including any administrative secretary and any expert, shall not, without the prior written consent of the
Parties, disclose to a third party any such matter except:
a. for the purpose of making an application to any competent court of any State to enforce or challenge
the Award;
b. pursuant to the order of or a subpoena issued by a court of competent jurisdiction;
c. for the purpose of pursuing or enforcing a legal right or claim;
d. in compliance with the provisions of the laws of any State which are binding on the party making the
disclosure or the request or requirement of any regulatory body or other authority;
e. for the purpose of facilitating the written submissions or oral submissions of a Non-disputing
Contracting Party or a Non-disputing Party under Rule 29 pursuant to an order by the Tribunal with
proper notice to the other Parties; or
f, pursuant to an order by the Tribunal on application by a Party with proper notice to the other Parties.
In Rule 37.1, “matters relating to the proceedings” includes the pleadings, evidence and other materi- 37.3
als in the arbitral proceedings and all other documents produced by another Party in the proceedings
or the Award arising from the proceedings, but excludes any matter that is otherwise in the public
domain.
The Tribunal has the power to take appropriate measures, including issuing an order or Award for sanc- 37.4
tions or costs, if a Party breaches the provisions of this Rule 37.
s

38. Publication
Where the Parties have agreed to arbitration in accordance with these Rules, the Parties shall be deemed to 38.1
have agreed that SLAC may publish information on proceedings conducted under these Rules.
Information that may be published pursuant to Rule 38.1 shall be limited to the nationality of the 38.2
Parties, the identity and nationality of the members of the Tribunal, the treaty, statute or other instru-
ment under which the arbitration has been commenced, if any, the date of the commencement of the
arbitration and whether the proceedings are ongoing or have been terminated. SIAC may also publish
redacted excerpts of the reasoning of the Tribunal and redacted decisions by the Court on challenges to
arbitrators.
With the express consent of the Parties, SLAC may publish the identity of the Parties, the contract under 38.3
which the arbitration has been commenced, if any, the identity of the Parties’ counsel, the economic
sector and industry to which the dispute relates, the total sum in dispute, details of any procedural steps
that have been taken in the proceedings and any orders, directions, decisions and Awards issued in the
proceedings

39. Decisions of the President, the Court and the Registrar

Except asprovided in these Rules, the decisions ofthe President, the Court and the Registrar with respect 39.1
toall matters relating toanarbitrat ion and binding upon the Parties and theTribunal,
shall beconclusive
The President, the Court and the Registrar shall not be required to provide reasons for such decisions,

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E EE
_—_—_—E—™_—=E=Ea

the
unless the Court determines otherwise or as may be provided in these Rules. The Parties agree that
discussions and deliberations of the Court are confidential.
39.2 Save in respect of Rule 13.1 and Rule 25.1, the Parties waive any right of appeal or review in respect of
any decisions of the President, the Court and the Registrar to any State court or other judicial authority.

40. General Provisions

40.1 Any Party that proceeds with the arbitration without promptly raising any objection to a failure to
comply with any provision of these Rules, or of any other rules applicable to the proceedings, any
direction given by the Tribunal, or any requirement under the arbitration clause relating to the con-
stitution of the Tribunal or the conduct of the proceedings, shall be deemed to have waived its.right
to object.
40.2 In all matters not expressly provided for in these Rules, the President, the Court, the Registrar and
the Tribunal shall act in the spirit of these Rules and shall make every reasonable effort to ensure
the fair, expeditious and economical conclusion of the arbitration and the enforceability of any
Award.
40.3 The Registrar may from time to time issue Practice Notes to supplement, regulate and implement these
Rules for the purpose of facilitating the administration of arbitrations governed by these Rules.
40.4 In the event of any discrepancy or inconsistency between the English version of the SIAC Investment
Arbitration Rules and any other languages in which the SIAC Investment Arbitration Rules are pub-
lished, the English version shall prevail.

SCHEDULE 1EMERGENCY ARBITRATOR

1. Ifthe Parties have expressly agreed on the application of the emergency arbitrator provisions set forth
in this Schedule 1, a Party that wishes to seek emergency interim relief may, concurrent with or following
the filing of a Notice of Arbitration but prior to the constitution of the Tribunal, file an application for
emergency interim relief with the Registrar. The Party shall, at the same time as it files the application for
emergency interim relief, send a copy of the application to all other Parties. The application for emergency
interim relief shall include:
a. the nature of the relief sought;
b. the reasons why the Party is entitled to such relief; and
c. astatement certifying that all other Parties have been provided with a copy of the application
or, if not, an explanation of the steps taken in good faith to provide a copy or notification to
all other Parties.
2. Any application for emergency interim relief shall be accompanied by payment of the non-refundable
administration fee and the requisite deposits under these Rules towards the Emergency Arbitrator’s
fees and expenses for proceedings pursuant to this Schedule 1. In appropriate cases, the Registrar may
increase the amount of the deposits requested from the Party making the application. If the additional
deposits are not paid within the time limit set by the Registrar, the application shall be considered as
withdrawn.
3. The Court shall, ifit determines that SLAC should accept the application for emergency interim relief,
seek to appoint an Emergency Arbitrator within one day of receipt by the Registrar of such application
and payment of the administration fee and deposits.
4, Ifthe Parties have agreed on the seat of the arbitration, such seat shall be the seat of the proceedings for
emergency interim relief. Failing such an agreement, the seat of the proceedings for emergency interim
relief shall be Singapore, without prejudice to the Tribunal’s determination of the seat of the arbitration
under Rule 18.1.
5. Prior to accepting appointment, a prospective Emergency Arbitrator shall disclose to the Registrar any
circumstances that may give rise to justifiable doubts as to his impartiality or independence. Any challenge
to the appointment of the Emergency Arbitrator must be made within two days of the communication

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by the Registrar to the Parties of the appointment of the Emergency Arbitrator and the circumstances
disclosed.
6. An Emergency Arbitrator may not act as an arbitrator in any future arbitration relating to the dispute,
unless otherwise agreed by the Parties.
7. The Emergency Arbitrator shall, as soon as possible but, in any event, within two days of his
appointment, establish a schedule for consideration of the application for emergency interim relief.
Such schedule shall provide a reasonable opportunity for the Parties to be heard, but may provide for
proceedings by telephone or video conference or on written submissions as alternatives to a hearing
in person. The Emergency Arbitrator shall have the powers vested in the Tribunal pursuant to these
Rules, including the authority to rule on his own jurisdiction, without prejudice to the Tribunal’s
determination.
8. The Emergency Arbitrator shall have the power to order or award any interim relief that he deems
necessary, including preliminary orders that may be made pending any hearing,telephone or video con-
ference or written submissions by the Parties. The Emergency Arbitrator shall give summary reasons
for his decision in writing. The Emergency Arbitrator may modify or vacate the preliminary order, the
interim order or Award for good cause.
9. The Emergency Arbitrator shall make his interim order or Award within 14 days from the date of
his appointment unless, in exceptional circumstances, the Registrar extends the time. No interim order
or Award shall be made by the Emergency Arbitrator until it has been approved by the Registrar as to
its form.
10. The Emergency Arbitrator shall have no power to act after the Tribunal is constituted. The Tribunal
may reconsider, modify or vacate any interim order or Award issued by the Emergency Arbitrator, includ-
ing a ruling on his own jurisdiction. The Tribunal is not bound by the reasons given by the Emergency
Arbitrator. Any interim order or Award issued by the Emergency Arbitrator shall, in any event, cease to
be binding if the Tribunal is not constituted within 90 days of such order or Award or when the Tribunal
makes a final Award or if the claim is withdrawn.
ll. Any interim order or Award by the Emergency Arbitrator may be conditioned on provision by the
Party seeking such relief of appropriate security.
12. The Parties agree that an order or Award by an Emergency Arbitrator pursuant to this Schedule | shall
be binding on the Parties from the date it is made, and undertake to carry out the interim order or Award
immediately and without delay. The Parties also irrevocably waive their rights to any form of appeal,
review or recourse to any State court or other judicial authority with respect to such Award insofar as such
waiver may be validly made. .
13. The costs associated with any application pursuant to this Schedule 1 may initially be apportioned by
the Emergency Arbitrator, subject to the power of the Tribunal to determine finally the apportionment of
such costs.
14. These Rules shall apply as appropriate to any proceeding pursuant to this Schedule 1, taking into
account the urgency of such a proceeding. The Emergency Arbitrator may decide in what manner these
Rules shall apply as appropriate, and his decision as to such matters is final and not subject to appeal,
review or recourse. The Registrar may abbreviate any time limits under these Rules in applications made
pursuant to proceedings commenced under Rule 27.4 and Schedule 1.

Overseas Parties $$2,000

+A filing feeisapplicable toallarbitrations conducted pursuant to and administered
by SIAC in accordance with the SIAC Investment Arbitration Rules, and to each
claim orcounterclaim.
* Fee includes
7% GST.

371
 Appendix 2: SIAC Investment Arbitration Rules
5.
eierenene rena AITO
SCHEDULE OF FEES
(All sums stated are in Singapore dollars)
This Schedule of Fees is effective as of 1 January 2017 and is applicable to all arbitrations commenced
under the SIAC Investment Arbitration Rules on or after 1 January 2017.
ET

Sum in Dispute (S$) Administration Fees (S$)

Up to 50,000 3,800
50,001 to 100,000 3,800 + 2.200% excess over 50,000
100,001 to 500,000 4,900 + 1.200% excess over 100,000
500,001 to 1,000,000 9,700 + 1.000% excess over 500,000
1,000,001 to 2,000,000 14,700 + 0.650% excess over 1,000,000
2,000,001 to 5,000,000 21,200 + 0.320% excess over 2,000,000
5,000,001 to 10,000,000 30,800 + 0.160% excess over 5,000,000
10,000,001 to 50,000,000 38,800 + 0.095% excess over 10,000,000
50,000,001 to 80,000,000 76,800 + 0.040% excess over 50,000,000
80,000,001 to 100,000,000 88,800 + 0.031% excess over 80,000,000
Above 100,000,000 95,000

FILING FEE* (Non-Refundable)

ADMINISTRATION FEES
The administration fee calculated in accordance with the Schedule below applies to all arbitrations con-
ducted pursuant to and administered by SIAC in accordance with the SIAC Investment Arbitration Rules
and is the maximum amount payable to SIAC.
The administration fee does not include the following:
* Fees and expenses of the Tribunal;
* Usage cost of facilities and support services for and in connection with any hearing (e.g. hearing rooms
and equipment, transcription and interpretation services); and
¢ SIAC’s administrative expenses.
SIAC will charge a minimum administration fee of $$3,800, payable for all cases conducted pursuant
to and administered by SIAC in accordance with the SIAC Investment Arbitration Rules, unless the

Sum in Dispute (S$) Arbitrator’s Fees (S$)

Up to 50,000 6,250
50,001 to 100,000 6,250 + 13.800% excess over 50,000
100,001 to 500,000 13,150 + 6.500% excess over 100,000
500,001 to 1,000,000 39,150 + 4.850% excess over 500,000
1,000,001 to 2,000,000 63,400 + 2.750% excess over 1,000,000
2,000,001 to 5,000,000 90,900 + 1.200% excess over 2,000,000
5,000,001 to 10,000,000 126,900 + 0.700% excess over 5,000,000
10,000,001 to 50,000,000 161,900 + 0.300% excess over 10,000,000
50,000,001 to 80,000,000 281,900 + 0.160% excess over 50,000,000
80,000,001 to 100,000,000 329,900 + 0.075% excess over 80,000,000
100,000,001 to 500,000,000 344,900 + 0.065% excess over 100,000,000
Above 500,000,000 605,000 + 0.040% excess over 500,000,000
up to a maximum of 2,000,000

Registrar otherwise determines.

372
 Appendix 2: SIAC Investment Arbitration Rules

ARBITRATOR'S FEES
For arbitrations conducted pursuant to and administered by SIAC in accordance with the SLAC
Investment Arbitration Rules, the fee calculated in accordance with the Schedule below is the maximum
amount payable to each arbitrator, unless the Parties have agreed to an alternative method of determining
the Tribunal’s fees pursuant to Rule 32.1.

Singapore Parties S$5,350*

Overseas Parties $$5,000
*Fee includes
7% GST.

EMERGENCY INTERIM RELIEF FEES

‘The following fees shall be payable in an application for emergency interim relief under Rule 27.4 and
Schedule 1 to the SLAC Investment Arbitration Rules:
An application under Rule 27.4 and Schedule 1 must be accompanied by a payment of the following:
1. Administration Fee for Emergency Arbitrator Applications (Non-Refundable):
2. Emergency Arbitrator’s Fees and Deposits: The deposits towards the Emergency Arbitrator’s fees
and expenses shall be fixed at $$30,000, unless the Registrar determines otherwise pursuant to

Singapore Parties $$8,560*

Overseas Parties S$8,000
*Fee includes
7% GST.

Schedule 1 to these Rules. The Emergency Arbitrator’s fees shall be fixed at $$25,000, unless the
oo gaan asgetmto Schedule 1tothese Rules.
CHALLENGE FEE (Non-Refundable)

A Party sut
ibmitting anotice of challenge shall make payment of the following challenge
fee pursuant to
Rule 12 3: inn

5 + ral ciiciieos amy (Sperronceiy ¥ POety, Say PETOR STKH 4 te

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 3 ’ ~ af vi , ; oe 4 -*

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‘ 7 . — mm
 APPENDIX 3

Singapore International Arbitration Centre

Code of Ethics for an Arbitrator (2015)

1 Appointment
A prospective arbitrator shall accept an appointment only if he is fully satisfied that he is able to discharge 1.1
his duties without bias, he has an adequate knowledge of the language of the arbitration, and he is able to
give to the arbitration the time and attention which the parties are reasonably entitled to expect.
Should the prospective arbitrator be aware of any potential time constraints in the next 12 months in his 1.2
ability to discharge his duties if he is appointed as an arbitrator, he shall, without breaching any existing
confidentiality considerations and/or obligations, disclose details of such time constraints to the Registrar
of SIAC in the attached Disclosure Sheet. SIAC reserves the right to refuse to appoint the prospective
arbitrator should it take the view that the prospective arbitrator will not be able to discharge his duties
due to such potential time constraints.
‘The prospective arbitrator confirms that he understands that the Registrar of SIAC will take into account 1.3
any failure by the prospective arbitrator to discharge his duties to ensure the fair, expeditious, economical
and final determination of the dispute when fixing the quantum of fees payable to the arbitrator.

2 Disclosure
A prospective arbitrator shall disclose all facts or circumstances that may give rise to justifiable doubts as to 2.1
his impartiality or independence, such duty to continue throughout the arbitral proceedings with regard
to new facts and circumstances.
A prospective arbitrator shall disclose to the Registrar and any party who approaches him for a possible 2.2
appointment:
(a) any past or present close personal relationship or business relationship, whether direct or indirect,
with any party to the dispute, or any representative of a party, or any person known to bea potentially
important witness in the arbitration;
(b) the extent of any prior knowledge he may have of the dispute.

3 Bias
The criteria for assessing questions relating to bias are impartiality and independence. Partiality arises 3.1
when an arbitrator favours one of the parties or where he is prejudiced in relation to the subject matter of
the dispute. Dependence arises from relationships between an arbitrator and one of the parties, or with
someone closely connected with one of the parties.
Any close personal relationship or current direct or indirect business relationship between an arbitrator 3.2
and a party, or any representative of a party, or with a person who is known to be a potentially important
witness, will normally give rise to justifiable doubts as to a prospective arbitrator's impartiality or inde-
pendence. Past business relationships will only give rise to justifiable doubts ifthey are of such magnitude
or nature as to be likely to affect a prospective arbitrator's judgment. He should decline to accept an
appointment in such circumstances unless the parties agree in writing that he may proceed.

4 Communications
Before accepting an appointment, anarbitrator may only enquire asto the general nature ofthedispute, 4.1
the names ofthe parties and the expected time period required for the arbitration.

375
 Appendix 3: SIAC Code ofEthics for an Arbitrator (2015)

4.2 Save as may be permitted under the applicable arbitration rules, no arbitrator shall confer with any ofthe
parties or their counsel until after the Registrar gives notice of the formation of the Tribunal to the parties.
4.3 Throughout the arbitral proceedings, an arbitrator shall avoid any unilateral communications regarding
the case with any party, or its representatives.

5 Fees
5.1 In accepting an appointment, an arbitrator agrees to the remuneration as settled by the SIAC, and he
shall make no unilateral arrangements with any of the parties or their counsel for any additional fees or
expenses, except with the express agreement of the Registrar.
ae All matters relating to arbitrators’ fees and expenses shall be dealt with in accordance with the Practice
Note forAdministered Cases (PN — 01/14, 2 January 2014).

6 Conduct
6.1 Once the arbitration proceedings commence, the arbitrator shall acquaint himself with all the facts and
arguments presented and all discussions relative to the proceedings so that he may properly understand
the dispute.

7 Confidentiality
BN The arbitration proceedings shall remain confidential. An arbitrator is in a relationship of trust to the
parties and should not, at any time, use confidential information acquired during the course of the pro-
ceedings to gain personal advantage or advantage for others, or to affect adversely the interest of another.
7.2 This Code of Ethics is not intended to provide grounds for the setting aside of any award.

376
 APPENDIX 4

Singapore International Arbitration Act

Chapter 143A
(Original Enactment: Act 23 of 1994)
REVISED EDITION 2002
(31st December 2002)
Prepared and Published by
THE LAW REVISION COMMISSION
UNDER THE AUTHORITY OF
THE REVISED EDITION OF THE LAWS ACT (CHAPTER 275)
Informal Consolidation—version in force from 1/8/2016

ARRANGEMENT OF SECTIONS
PARTI PRELIMINARY
Section
1. Short title
PART If INTERNATIONAL COMMERCIAL ARBITRATION
Interpretation of Part II
Definition and form of arbitration agreement
Model Law to have force of law
Interpretation of Model Law by use of extrinsic material
Application of Part II
Enforcement of international arbitration agreement
Court's powers on stay of proceedings
Authorities specified for purposes of Article 6 of Model Law
oo Application of Limitation Act and Foreign Limitation Periods Act 2012
yp
dn Number of arbitrators for purposes of Article 10 (2) of Model Law
ronauaw
9A. Default appointment of arbitrators
10. Appeal on ruling of jurisdiction
ll. Public policy and arbitrability
11A. Reference of interpleader issue to arbitration
12. Powers of arbitral tribunal
12A. Court-ordered interim measures
13. Witnesses may be summoned by subpoena
14. [Repealed]
15. Law of arbitration other than Model Law
15A. Application of rules of arbitration
16. Appointment of conciliator
17. Power of arbitrator to act as conciliator
18. Award by consent

19. Enforcement of awards

19A. Awards made on different issues
19B. Effect of award
19C. Authentication of awards and arbitration agreements
20. Interest on awards
21. Taxation of costs
in open court
to be heard otherwise than
22. Proceedings

377
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)
= eee

23. Restrictions on reporting of proceedings heard otherwise than in open court

24. Court may set aside award
25. Liability of arbitrator
25A. Immunity of appointing authority and arbitral institutions, etc.
26. Transitional provisions
PART III FOREIGN AWARDS
27. Interpretation of Part III
28. Application of Part III
29. Recognition and enforcement of foreign awards
30. Evidence
31. Refusal of enforcement
32. [Repealed]
33. Enforcement of awards under other provisions of law
PART IV GENERAL
34. Act to bind Government
35. Rules of Court
First Schedule—UNCITRAL Model Law on International
Commercial Arbitration
Second Schedule—Convention on the Recognition and
Enforcement
of Foreign Arbitral Awards Concluded at New York on 10th June 1958
An Act to make provision for the conduct of international commercial arbitrations
based on the Model Law on International Commercial Arbitration adopted by
the United Nations Commission on
International Trade Law and conciliation proceedings and to give effect to
the New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards and for matters connected therewith.
[27th January 1995]

PART I PRELIMINARY
Short title

1.This Act may be cited as the International Arbitration Act.

PART II INTERNATIONAL COMMERCIAL ARBITRATION

Interpretation of Part II
2.—(1) In this Part, unless the context otherwise requires —
“arbitral tribunal” means a sole arbitrator or a panel of arbitrators or a permanent arbitral institu-
tion, and includes an emergency arbitrator appointed pursuant to the rules of arbitration agreed
to or adopted by the parties including the rules of arbitration of an institution or organisation;
[Act 12 of 2012 wef 01/06/2012]
“appointing authority” means the authority designated under section 8(2) or (3);
“arbitration agreement” means an arbitration agreement referred to in section 2A;
[Act 12 of 2012 wef 01/06/2012]
“award” means a decision of the arbitral tribunal on the substance of the dispute and includes
any interim, interlocutory or partial award but excludes any orders or directions made under
section 12;
[Deleted by Act 12 of 2012 wef01/06/2012]
[Deleted by Act 12 of 2012 wef 01/06/2012]

378
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

“Model Law” means the UNCITRAL Model Law on International Commercial Arbitration
adopted by the United Nations Commission on International Trade Law on 21st June 1985, the text
in English of which is set out in the First Schedule;
“party” means a party to an arbitration agreement or, in any case where an arbitration does not
involve all of the parties to the arbitration agreement, means a party to the arbitration.
(38/2001)
(2) Except so far as the contrary intention appears, a word or expression that is used both in this Part
and in the Model Law (whether or not a particular meaning is given to it by the Model Law) has, in
the Model Law, the same meaning as it has in this Part.
(3) (Deleted by Act 12 of 2012 wef 01/06/2012]
(4) [Deleted by Act 12 of 2012 wef01/06/2012)

Definition and form of arbitration agreement

2A.—(1) In this Act, “arbitration agreement” means an agreement by the parties to submit to arbitra-
tion all or certain disputes which have arisen or which may arise between them in respect of a
defined legal relationship, whether contractual or not.
(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of
a separate agreement.
(3) An arbitration agreement shall be in writing.
(4) An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbi-
tration agreement or contract has been concluded orally, by conduct or by other means.
(5) The requirement that an arbitration agreement shall be in writing is satisfied by an electronic com-
munication if the information contained therein is accessible so as to be useable for subsequent
reference.
(6) Where in any arbitral or legal proceedings, a party asserts the existence of an arbitration agreement
in a pleading, statement of case or any other document in circumstances in which the assertion calls
for a reply and the assertion is not denied, there shall be deemed to be an effective arbitration agree-
ment as between the parties to the proceedings.
(7) A reference in a contract to any document containing an arbitration clause shall constitute
an arbitration agreement in writing if the reference is such as to make that clause part of the
contract.
(8) A reference in a bill of lading to a charterparty or other document containing an arbitration clause
shall constitute an arbitration agreement in writing if the reference is such as to make that clause part
of the bill of lading. |
(9) Article 7 of the Model Law shall not apply to this section.
(10) In this section —
“data message” means information generated, sent, received or stored by electronic, magnetic,
optical or similar means, including, but not limited to, electronic data interchange (EDI), electronic
mail, telegram, telex or telecopy;
“electronic communication” means any communication that the parties make by means of data
messages.
th [Act 12 of 2012 wef 01/06/2012]
Model Law to have force oflaw

3.—(1) Subject to this Act, the Model Law, with the exception of Chapter VIII thereof, shall have the
force of law in Singapore.
(2) In theModel Law —
“State” means Singapore and any country other than Singapore;
“this State” means Singapore.
Interpre of Model Law by use of extrinsic
tati on material
4,—(1) For the purposes ofinterpreting the Model Law, reference may be made tothe documents of —
(a) the United Nations Commission on International Trade Law; and
(b) its working group for the preparation ofthe Model Law, relating to the Model Law.

379
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)
ieee

(2) Subsection (1) shall not affect the application ofsection 9A of the Interpretation Act (Cap. 1) for the
purposes ofinterpreting this Act.
Application of Part II

5.—(1) This Part and the Model Law shall not apply to an arbitration which is not an international
arbitration unless the parties agree in writing that this Part or the Model Law shall apply to that
arbitration.
(2) Notwithstanding Article 1(3) of the Model Law, an arbitration is international if —
(a) at least one of the parties to an arbitration agreement, at the time of the conclusion of the agree-
ment, has its place of business in any State other than Singapore; or j
(b) one of the following places is situated outside the State in which the parties have their places of
business:
(i) the place of arbitration if determined in, or pursuant to, the arbitration agreement;
(ii) any place where a substantial part of the obligations of the commercial relationship is to
be performed or the place with which the subject-matter of the dispute is most closely
connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to
more than one country.
(3) For the purposes of subsection (2) —
(a) ifa party has more than one place of business, the place of business shall be that which has the
closest relationship to the arbitration agreement;
(b) ifa party does not have a place of business, a reference to his place of business shall be construed
as a reference to his habitual residence.
(4) Notwithstanding any provision to the contrary in the Arbitration Act (Cap. 10), that Act shall not
apply to any arbitration to which this Part applies.

Enforcement of international arbitration agreement

6.—(1) Notwithstanding Article 8 of the Model Law, where any party to an arbitration agreement to
which this Act applies institutes any proceedings in any court against any other party to the
agreement in respect of any matter which is the subject of the agreement, any party to the agree-
ment may, at any time after appearance and before delivering any pleading or taking any other
step in the proceedings, apply to that court to stay the proceedings so far as the proceedings relate
to that matter.
(38/2001)
(2) The court to which an application has been made in accordance with subsection (1) shall make an
order, upon such terms or conditions as it may think fit, staying the proceedings so far as the pro-
ceedings relate to the matter, unless it is satisfied that the arbitration agreement is null and void,
inoperative or incapable of being performed.
[38/2001]
(3) Where a court makes an order under subsection (2), the court may, for the purpose of preserving
the rights of parties, make such interim or supplementary orders as it may think fit in relation to any
property which is the subject of the dispute to which the order under that subsection relates.
(4) Where no party to the proceedings has taken any further step in the proceedings for a period of not
less than 2 years after an order staying the proceedings has been made, the court may, on its own
motion, make an order discontinuing the proceedings without prejudice to the right of any of the
parties to apply for the discontinued proceedings to be reinstated.
(38/2001)
(5) For the purposes of this section and sections 7 and 11A —
(a) a reference to a party shall include a reference to any person claiming through or under such
party;
(b) “court” means the High Court, District Court, Magistrate’s Court or any other court in which
proceedings are instituted,
[38/2001]

380
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

Court's powers on stay of proceedings

7.—(1) Where a court stays proceedings under section 6, the court may, if in those proceedings property
has been arrested or bail or other security has been given to prevent or obtain release from arrest,
order —
(a) that the property arrested be retained as security for the satisfaction of any award made on
the arbitration; or
(b) that che stay be conditional on the provision of equivalent security for the satisfaction of any
such award.
(38/2001)
(2) Subject to Rules of Court and to any necessary modification, the same law and practice shall apply
in relation to property retained in pursuance of an order under this section as would apply if it were
held for the purposes of proceedings in the court which made the order.

Authorities specified for purposes of Article 6 of Model Law

8.—(1) The High Court in Singapore shall be taken to have been specified in Article 6 of the Model Law
as courts competent to perform the functions referred to in that Article except for Article 11(3)
and (4) of the Model Law.
(2) The President of the Court of Arbitration of the Singapore International Arbitration Centre shall be
taken to have been specified as the authority competent to perform the functions under Article 11(3)
and (4) of the Model Law.
[38/2001]
[Act 16 of 2016 wef 01/08/2016]
(3) The Chief Justice may, if he thinks fit, by notification published in the Gazette, appoint any other per-
son to exercise the powers of the President of the Court of Arbitration of the Singapore International
Arbitration Centre under subsection (2).

[38/2001]
[Act 16 of 2016 wef 01/08/2016]

Application of Limitation Act and Foreign Limitation Periods Act 2012

8A.—(1) The Limitation Act (Cap. 163) and the Foreign Limitation Periods Act 2012 shall apply to arbi-
tral proceedings as they apply to proceedings before any court and any reference in both Acts
to the commencement of proceedings shall be construed as a reference to the commencement
of arbitral proceedings.
[Act 13 of 2012 wef 01/06/2012]
(2) The High Court may order that in computing the time prescribed by the Limitation Act or the
Foreign Limitation Periods Act 2012 for the commencement of proceedings (including arbitral pro-
ceedings) in respect of a dispute which was the subject-matter of —
(a) an award which the High Court orders to be set aside or declares to be of no effect; or
(b) the affected part of an award which the High Court orders to be set aside in part or declares
to be in part of no effect,
the period between the commencement of the arbitration and the date of the order referred to in para-
graph (a) or (b) shall be excluded.
[38/2001]
[Act 13 of 2012 wef 01/06/2012]
3) Notwithstanding any term in an arbitration agreement to the effect that no cause of action shall
= Se RII ae scan obese leCataqrectiget ca Necxterved wallan,arardin nde uodes
the agreement, the cause of action shall, for the purposes of the LimitationAct and the Foreign
Limitation Periods Act 2012, be deemed to have accrued in respect of any such matter atthe time
when it would have accrued but for that term in the agreement.
[38/2001]
[Act 13 of 2012 wef 01/06/2012]

381
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)
i

Number of arbitrators for purposes of Article 10 (2) of Model Law

9. Notwithstanding Article 10(2) of the Model Law, if the number of arbitrators is not determined by
the parties, there shall be a single arbitrator.
Default appointment of arbitrators
9A.—(1) Notwithstanding Article 11(3) of the Model Law, in an arbitration with 3 arbitrators, each party
shall appoint one arbitrator, and the parties shall by agreement appoint the third arbitrator.
(38/2001)
(2) Where the parties fail to agree on the appointment of the third arbitrator within 30 days of the
receipt of the first request by either party to do so, the appointment shall be made, upon the request
of a party, by the appointing authority.
(38/2001)
Appeal on ruling of jurisdiction
10.—(1) This section shall have effect notwithstanding Article 16(3) of the Model Law.
(2) An arbitral tribunal may rule on a plea that it has no jurisdiction at any stage of the arbitral
proceedings.
(3) Ifthe arbitral tribunal rules —
(a) on aplea asa preliminary question that it has jurisdiction; or
(b) ona plea at any stage of the arbitral proceedings that it has no jurisdiction,
any party may, within 30 days after having received notice of that ruling, apply to the High Court to
decide the matter.
(4) An appeal from the decision of the High Court made under Article 16(3) of the Model Law or this
section shall lie to the Court of Appeal only with the leave of the High Court.
(5) There shall be no appeal against a refusal for grant of leave of the High Court.
(6) Where the High Court, or the Court of Appeal on appeal, decides that the arbitral tribunal has
jurisdiction —
(a) the arbitral tribunal shall continue the arbitral proceedings and make an award; and
(b) where any arbitrator is unable or unwilling to continue the arbitral proceedings, the mandate of
that arbitrator shall terminate and a substitute arbitrator shall be appointed in accordance with
Article 15 of the Model Law.
(7) In making a ruling or decision under this section that the arbitral tribunal has no jurisdiction, the arbi-
tral tribunal, the High Court or the Court of Appeal (as the case may be) may make an award or order
of costs of the proceedings, including the arbitral proceedings (as the case may be), against any party.
(8) Where an award of costs is made by the arbitral tribunal under subsection (7), section 21 shall apply
with the necessary modifications.
(9) Where an application is made pursuant to Article 16(3) of the Model Law or this section —
(a) such application shall not operate as a stay of the arbitral proceedings or of execution of any
award or order made in the arbitral proceedings unless the High Court orders otherwise; and
(b) no intermediate act or proceeding shall be invalidated except so far as the High Court may direct.
(10) Where there is an appeal from the decision of the High Court pursuant to subsection (4) —
(a) such appeal shall not operate as a stay of the arbitral proceedings or of execution of any award
or order made in the arbitral proceedings unless the High Court or the Court of Appeal orders
otherwise; and
(b) no intermediate act or proceeding shall be invalidated except so far as the Court of Appeal may
direct.
[Act 12 of 2012 wef 01/06/2012]
Public policy and arbitrability
11l,—(1) Any dispute which the parties have agreed to submit to arbitration under an arbitration agree-
ment may be determined by arbitration unless it is contrary to public policy to do so.
(38/2001)

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 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

(2) ‘The fact that any written law confers jurisdiction in respect of any matter on any court of law but does
not refer to the determination of that matter by arbitration shall not, ofitself, indicate that a dispute
about that matter is not capable of determination by arbitration.

Reference of interpleader issue to arbitration

\LA. Where in proceedings before any court relief by way of interpleader is granted and any issue between
the claimants is one in respect of which there is an arbitration agreement between them, the court
granting the relief may direct the issue between the claimants to be determined in accordance with
the agreement.
[38/2001]

Powers of arbitral tribunal

12.—(1) Without prejudice to the powers set out in any other provision of this Act and in the Model
Law, an arbitral tribunal shall have powers to make orders or give directions to any party for —
(a) security for costs;
(b) discovery of documents and interrogatories;
(c) giving of evidence by affidavit;
(d) the preservation, interim custody or sale of any property which is or forms part of the
subject-matter of the dispute;
(e) samples to be taken from, or any observation to be made of or experiment conducted upon,
any property which is or forms part of the subject-matter of the dispute;
(f) the preservation and interim custody of any evidence for the purposes of the proceedings;
(g) securing the amount in dispute;
(h) ensuring that any award which may be made in the arbitral proceedings is not rendered
ineffectual by the dissipation of assets by a party; and
(i) an interim injunction or any other interim measure.
[38/2001]
(2) An arbitral tribunal shall, unless the parties to an arbitration agreement have (whether in the arbitra-
tion agreement or in any other document in writing) agreed to the contrary, have power to administer
oaths to or take affirmations of the parties and witnesses.
(3) An arbitral tribunal shall, unless the parties to an arbitration agreement have (whether in the arbitra-
tion agreement or in any other document in writing) agreed to the contrary, have power to adopt if
it thinks fit inquisitorial processes.
(4 The power of the arbitral tribunal to order a claimant to provide security for.costs as referred to in
—

subsection (1)(a) shall not be exercised by reason only that the claimant is —
(a) an individual ordinarily resident outside Singapore; or
(b) a corporation or an association incorporated or formed under the law of a country outside
Singapore, or whose central management and control is exercised outside Singapore.
[38/2001]
(5) Without prejudice to the application of Article 28 of the Model Law, an arbitral tribunal, in deciding
the dispute that is the subject of the arbitral proceedings —
(a) may award any remedy or relief that could have been ordered by the High Court if the dispute
had been the subject of civil proceedings in that Court;
(b) may award simple or compound interest on the whole or any part of any sum in accordance with
section 20(1).
[Act 12 of 2012 wef 01/06/2012]
(6) All orders or directions made or given by an arbitral tribunal in the course of an arbitration shall, by
leave of the High Court or a Judge thereof, be enforceable in the same manner as ifthey were orders
made by a court and, where leave is so given, judgment may be entered in terms of the order or
direction.
(7) [Deleted by Act 26/2009 wef01/01/2010]

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Court-ordered interim measures

12A. —(1) This section shall apply in relation to an arbitration —
(a) to which this Part applies; and
(b) irrespective of whether the place of arbitration is in the territory of Singapore.
(2) Subject to subsections (3) to (6), for the purpose of and in relation to an arbitration referred to in
subsection (1), the High Court or a Judge thereof shall have the same power of making an order in
respect of any of the matters set out in section 12(1)(c) to (i) as it has for the purpose of and in relation
to an action or a matter in the court.
(3 The High Court or a Judge thereof may refuse to make an order under subsection (2) if, in the
~~

opinion of the High Court or Judge, the fact that the place of arbitration is outside Singapore or
likely to be outside Singapore when it is designated or determined makes it inappropriate to make
such order.
(4) Ifthe case is one of urgency, the High Court or a Judge thereof may, on the application of a party or
proposed party to the arbitral proceedings, make such orders under subsection (2) as the High Court
or Judge thinks necessary for the purpose of preserving evidence or assets.
(5) Ifthe case is not one of urgency, the High Court or a Judge thereof shall make an order under subsec-
tion (2) only on the application of a party to the arbitral proceedings (upon notice to the other parties
and to the arbitral tribunal) made with the permission of the arbitral tribunal or the agreement in
writing of the other parties.
(6) In every case, the High Court or a Judge thereof shall make an order under subsection (2) only if or
to the extent that the arbitral tribunal, and any arbitral or other institution or person vested by the
parties with power in that regard, has no power or is unable for the time being to act effectively.
(7) An order made by the High Court or a Judge thereof under subsection (2) shall cease to have effect in
whole or in part (as the case may be) if the arbitral tribunal, or any such arbitral or other institution
or person having power to act in relation to the subject-matter of the order, makes an order which
expressly relates to the whole or part of the order under subsection (2).
[26/2009 wef 01/01/2010]

Witnesses may be summoned by subpoena

13.—(1) Any party to an arbitration agreement may take out a subpoena to testify or a subpoena to
produce documents.
[42/2005 wef 01/01/2006]
(2) The High Court or a Judge thereof may order that a subpoena to testify or a subpoena to produce
documents shall be issued to compel the attendance before an arbitral tribunal of a witness wherever
he may be within Singapore.
[42/2005 wef 01/01/2006]
(38/2001)
[Act 12 of 2012 wef 01/06/2012]
(3) The High Court or a Judge thereof may also issue an order under section 38 of the Prisons Act
(Cap. 247) to bring up a prisoner for examination before an arbitral tribunal.
[38/2001]
[Act 12 of 2012 wef 01/06/2012]
(4) No person shall be compelled under any such subpoena to produce any document which he could
not be compelled to produce on the trial of an action.
[42/2005 wef 01/01/2006]
(38/2001)
14, [Repealed by Act 12 of 2012 wef 01/06/2012]

Law of arbitration other than Model Law

15.—(1) If the parties to an arbitration agreement (whether made before or after Ist November 2001*)
have expressly agreed either —
(a) that the Model Law or this Part shall not apply to the arbitration; or
(b) that the Arbitration Act (Cap. 10) or the repealed Arbitration Act (Cap. 10, 1985 Ed.)
shall
apply to the arbitration,

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then, both the Model Law and this Part shall not apply to thar arbitration but the Arbitration Act or the
repealed Arbitration Act (ifapplicable) shall apply to that arbitration.
(38/2001)
* Date of commencement of the International Arbitration (Amendment) Act 2001 (Act 38/2001).
(2) For the avoidance of doubt, a provision in an arbitration agreement referring to or adopting any rules
of arbitration shall not ofitself be sufficient to exclude the application of the Model Law or this Part
to the arbitration concerned.
(38/2001; 28/2002]

Application of rules of arbitration

1I5A.—(1) Itis hereby declared for the avoidance of doubt that a provision of rules of arbitration agreed to
or adopted by the parties, whether before or after the commencement of the arbitration, shall
apply and be given effect to the extent that such provision is not inconsistent with a provision
of the Model Law or this Part from which the parties cannot derogate.
[28/2002]
(2) Without prejudice to subsection (1), subsections (3) to (6) shall apply for the purposes of determin-
ing whether a provision of rules of arbitration is inconsistent with the Model Law or this Part.
[28/2002]
(3) A provision of rules of arbitration is not inconsistent with the Model Law or this Part merely because
it provides for a matter on which the Model Law and this Part is silent.
[28/2002]
(4) Rules of arbitration are not inconsistent with the Model Law or this Part merely because the rules are
silent on a matter covered by any provision of the Model Law or this Part.
[28/2002]
(5) A provision of rules of arbitration is not inconsistent with the Model Law or this Part merely because
it provides for a matter which is covered by a provision of the Model Law or this Part which allows
the parties to make their own arrangements by agreement but which applies in the absence of such
agreement.
[28/2002]
(6) The parties may make the arrangements referred to in subsection (5) by agreeing to the applica-
tion or adoption of rules of arbitration or by providing any other means by which a matter may be
decided.
; [28/2002]
(7) Imthis section and section 15, “rules of arbitration” means the rules of arbitration agreed to or adopted
by the parties including the rules of arbitration of an institution or organisation.
[28/2002]

Appointment of conciliator
16.—(1) Where an agreement provides for the appointment of a conciliator by a person who is not one
of the parties and that person refuses to make the appointment or does not make it within
the time specified in the agreement or, if no time is so specified, within a reasonable time of
being requested by any party to the agreement to make the appointment, the President of the
Court of Arbitration of the Singapore International Arbitration Centre may, on the applica-
tion of any party to the agreement, appoint a conciliator who shall have the like powers to act
in the conciliation proceedings as if he had been appointed in accordance with the terms of
the agreement.
[Act 16 of 2016 wef 01/08/2016]
2) The Chief Justice may, ifhe thinks fit,bynotification published in the Gazette, appoint any other per-
- sontoexercisethepowers of thePresident oftheCourtofArbitration of theSingapore Intemational
Arbitration Centre under subsection (1).
[Act 16 of 2016 wef 01/08/2016]

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(3) Where an arbitration agreement provides for the appointment of a conciliator and further provides
that the person so appointed shall act as an arbitrator in the event of the conciliation proceedings
failing to produce a settlement acceptable to the parties —
(a) no objection shall be taken to the appointment of such person as an arbitrator, or to his conduct
of the arbitral proceedings, solely on the ground that he had acted previously as a conciliator in
connection with some or all of the matters referred to arbitration;
(b) if such person declines to act as an arbitrator, any other person appointed as an arbitrator shall
not be required first to act as a conciliator unless a contrary intention appears in the arbitration
agreement.
(4) Unless a contrary intention appears therein, an agreement which provides for the appointment of a
conciliator shall be deemed to contain a provision that in the event of the conciliation proceédings
failing to produce a settlement acceptable to the parties within 4 months, or such longer period as
the parties may agree to, of the date of the appointment of the conciliator or, where he is appointed
by name in the agreement, of the receipt by him of written notification of the existence of a dispute,
the conciliation proceedings shall thereupon terminate.
(5 For the purposes of this section and section 17 —
—

(a) any reference to “conciliator” shall include a reference to any person who acts as a mediator;
(b) any reference to “conciliation proceedings” shall include a reference to mediation proceedings.
(38/2001)

Power of arbitrator to act as conciliator

17.—(1) Ifall parties to any arbitral proceedings consent in writing and for so long as no party has with-
drawn his consent in writing, an arbitrator or umpire may act as a conciliator.
(2) An arbitrator or umpire acting as conciliator —
(a) may communicate with the parties to the arbitral proceedings collectively or separately; and
(b) shall treat information obtained by him from a party to the arbitral proceedings as confidential,
unless that party otherwise agrees or unless subsection (3) applies.
(3) Where confidential information is obtained by an arbitrator or umpire from a party to the arbitral
proceedings during conciliation proceedings and those proceedings terminate without the parties
reaching agreement in settlement of their dispute, the arbitrator or umpire shall before resuming the
arbitral proceedings disclose to all other parties to the arbitral proceedings as much of that informa-
tion as he considers material to the arbitral proceedings.
(4) No objection shall be taken to the conduct of arbitral proceedings by a person solely on the ground
that that person had acted previously as a conciliator in accordance with this section.

Award by consent
18. Ifthe parties to an arbitration agreement reach agreement in settlement of their dispute and the arbi-
tral tribunal has recorded the terms of settlement in the form of an arbitral award on agreed terms in
accordance with Article 30 of the Model Law, the award —
(a) shall be treated as an award on an arbitration agreement; and
(b) may, by leave of the High Court or a Judge thereof, be enforced in the same manner as a judgment
or an order to the same effect, and where leave is so given, judgment may be entered in terms of
the award.

Enforcement of awards
19. Anaward on an arbitration agreement may, by leave of the High Court or a Judge thereof, be enforced
in the same manner as a judgment or an order to the same effect and, where leave is so given, judg-
ment may be entered in terms of the award.

Awards made on different issues

19A.—(1) Unless otherwise agreed by the parties, the arbitral tribunal may make more than one award
at different points in time during the arbitral proceedings on different aspects of the matters
to be determined.
[38/2001]
[Act 12 of 2012 wef 01/06/2012]

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(2) The arbitral cribunal may, in particular, make an award relating co —

(a) an issue affecting the whole claim; or
(b) a part only of the claim, counter-claim or cross-claim, which is submitted to it for decision.

(38/2001)
(3) If the arbitral tribunal makes an award under this section, it shall specify in its award, the issue, or
claim or part ofaclaim, which is the subject-matter of the award. (38/ 2001)

Effect of award
19B.—(1) An award made by the arbitral tribunal pursuant to an arbitration agreement is final and bind-
ing on the parties and on any persons claiming through or under them and may be relied upon
by any of the parties by way of defence, set-off or otherwise in any proceedings in any court of
competent jurisdiction.
[38/2001]
(2) Except as provided in Articles 33 and 34(4) of the Model Law, upon an award being made, including
an award made in accordance with section 19A, the arbitral tribunal shall not vary, amend, correct,
review, add to or revoke the award.
[38/2001]
(3) For the purposes of subsection (2), an award is made when it has been signed and delivered in accord-
ance with Article 31 of the Model Law.
[38/2001]
(4) This section shall not affect the right of a person to challenge the award by any available arbitral pro-
cess of appeal or review or in accordance with the provisions of this Act and the Model Law.
[38/2001]

Authentication of awards and arbitration agreements

19C.—(1) For the purposes of the enforcement of an award in any Convention country, the Minister
may by order appoint such persons holding office in such arbitral institution or other organ-
isation as the Minister may specify in the order, to authenticate any award or arbitration
agreement or to certify copies thereof.
(2) Any person appointed under subsection (1) —
(a) shall comply with any condition imposed by the Minister; and
(b) shall not, without the written consent of the parties, directly or indirectly disclose any matter,
including the identity of any party to the award or arbitration agreement, to any third party.
(3) An award or arbitration agreement or a copy thereof duly authenticated or certified by a person
appointed under subsection (1) shall be deemed to have been authenticated or certified by a compe-
tent authority in Singapore for the purposes of enforcement in any Convention country.
(4) For the avoidance of doubt, nothing in this section shall —
(a) prevent any person from authenticating any award or arbitration agreement or certifying copies
thereof in any other manner or method or by any other person, institution or organisation; or
(b) affect the right of a person to challenge or appeal against any award by any available arbitral pro-
cess of appeal or review, or in accordance with the provisions of this Act and the Model Law.
(5) In this section, “Convention country” has the same meaning as in section 27(1).
[26/2009 wef 01/01/2010]

Interest on awards
20.—(1) Subje ct (3), unless otherwi
tosubsection seby the parties, anarbitral tribunal may,
agreed inthe
arbitral proceedings before it, award simple or compound interest from such date, at such rate
and with such rest asthe arbitral tribunal considers appropriate, for any period ending not later
than the date of payment on the whole or any part of —
(a) any sum which is awarded by the arbitral tribunal inthe arbitral proceedings;
(b) any sum which isinissue inthe arbitral proceedings but is paid before the date of the
award;or
(c) costs awarded or ordered by the arbitral tribunal in the arbitral proceedings.
(2) Nothing insubsection (1) shall affect any other power ofanarbitral tribunal to award interest.
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 Appendix 4: Singapore International Arbitration Act (Chapter 143A)
i

(3) Where an award directs a sum to be paid, that sum shall, unless the award otherwise directs, carry
interest as from the date of the award and ar the same rate as a judgment debt.
[Act 12 of 2012 wef 01/06/2012)

Taxation of costs
21.—(1) Any costs directed by an award to be paid shall, unless the award otherwise directs, be taxable
by the Registrar of the Singapore International Arbitration Centre (referred to in this section
as the Registrar).
(2) Unless the fees of the arbitral tribunal have been fixed by a written agreement or such agreement has
provided for determination of the fees by a person or an institution agreed to by the parties, any party
to the arbitration may require that such fees be taxed by the Registrar.
[38/2001]
(3) A certificate signed by the Registrar on the amount of costs or fees taxed shall form part of the award
of the arbitral tribunal.
(4) The Chief Justice may, if he thinks fit, by notification published in the Gazette, appoint any other
person to exercise the powers of the Registrar under this section.
Proceedings to be heard otherwise than in open court
22. Proceedings under this Act in any court shall, on the application of any party to the proceedings, be
heard otherwise than in open court.
Restrictions on reporting of proceedings heard otherwise than in open court
23.—(1) This section shall apply to proceedings under this Act in any court heard otherwise than in
open court.
(2) A court hearing any proceedings to which this section applies shall, on the application of any party
to the proceedings, give directions as to whether any and, if so, what information relating to the pro-
ceedings may be published.
(3) A court shall not give a direction under subsection (2) permitting information to be published
unless —
(a) all parties to the proceedings agree that such information may be published; or
(b) the court is satisfied that the information, if published in accordance with such directions as it
may give, would not
reveal any matter, including the identity of any party to the proceedings, that any party to the
proceedings reasonably wishes to remain confidential.
(4) Notwithstanding subsection (3), where a court gives grounds of decision for a judgment in respect of
proceedings to which this section applies and considers that judgment to be of major legal interest,
the court shall direct that reports of the judgment may be published in law reports and professional
publications but, if any party to the proceedings reasonably wishes to conceal any matter, including
the fact that he was such a party, the court shall —
(a) give directions as to the action that shall be taken to conceal that matter in those reports; and
(b) if it considers that a report published in accordance with directions given under paragraph
(a) would be likely to reveal that matter, direct that no report shall be published until after the
end of such period, not exceeding 10 years, as it considers appropriate.
Court may set aside award
24. Notwithstanding Article 34(1) of the Model Law, the High Court may, in addition to the grounds set
out in Article 34(2) of the Model Law, set aside the award of the arbitral tribunal if —
(a) the making of the award was induced or affected by fraud or corruption; or
(b) a breach of the rules of natural justice occurred in connection with the making of the award by
which the rights of any party have been prejudiced.
Liability of arbitrator
25. An arbitrator shall not be liable for —
(a) negligence in respect of anything done or omitted to be done in the capacity of arbitrator; and
(b) any mistake in law, fact or procedure made in the course of arbitral proceedings or in the making
of an arbitral award.

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 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

Immunity of appointing authority and arbitral institutions, etc.

25A.—(1) The appointing authority, or an arbitral or other institution or person designated or requested
by the parties to appoint or nominate an arbitrator, shall not be liable for anything done or
omitted in the discharge or purported discharge of chat function unless the act or omission is
shown to have been in bad faith.
[38/2001]
(2) ‘The appointing authority, or an arbitral or other institution or person by whom an arbitrator is
appointed or nominated, shall not be liable, by reason only of having appointed or nominated him,
for anything done or omitted by the arbitrator, his employees or agents in the discharge or purported
discharge of his functions as arbitrator.
[38/2001]
(3) This section shall apply to an employee or agent of the appointing authority or of an arbitral or other
institution or person as it applies to the appointing authority, institution or person himself.
[38/2001]

Transitional provisions
26.—(1) This Part shall not apply in relation to an international arbitration between parties to an arbitra-
tion agreement that was commenced before 27th January 1995 unless the parties have (whether
in the agreement or in any other document in writing) otherwise agreed.
(2) Subject to subsection (1), where the arbitral proceedings were commenced before 27 January 1995,
the law governing the arbitration agreement and the arbitration shall be the law which would have
applied if this Act had not been enacted.
(3) In any written law, agreement in writing or other document, a reference to arbitration under the
Arbitration Act (Cap. 10) shall, so far as relevant and unless the contrary intention appears, be con-
strued to include a reference to arbitration under this Act.
(4) For the purposes of this section, arbitral proceedings are to be taken as having commenced on the
date of the receipt by the respondent of a request for the dispute to be referred to arbitration, or, where
the parties have agreed in writing that any other date is to be taken as the date of commencement of
the arbitral proceedings, then on that date.

PART III
FOREIGN AWARDS
Interpretation of Part III
27.—(1) In this Part, unless the context otherwise requires —
“agreement in writing” includes an agreement contained in an exchange of letters, telegrams,
telefacsimile or in a communication by teleprinter;
“arbitral award” has the same meaning as in the Convention, but also includes an order or a
direction made or given by an arbitral tribunal in the course of an arbitration in respect of any
of the matters set out in section 12(1)(c) to (i);
[Act 12 of 2012 wef 01/06/2012]
“arbitration agreement” means an agreement in writing of the kind referred to in paragraph 1 of
Article II of the Convention;
“Convention” means the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards adopted in 1958 by the United Nations Conference on International Commercial
Arbitration atitstwenty-fourth meeting, the English text ofwhich issetoutinthe Second Schedule;
“Convention country” means a country (other than Singapore) that is a Contracting State
within the meaning of the Convention;
“court” means the High Court in Singapore; |
“foreign award” means anarbitral award made in pursuance of anarbitration agreement in the
territory of aConvention country other than Singapore.
(2) Inthis Part, where the context soadmits, “enforcement”, inrelation toa foreign award, includes the
recognition ofthe award asbinding forany purpose, and“enforce” and “enforced” have corresponding
meanings.
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 Appendix 4: Singapore International Arbitration Act (Chapter 143A)
en
if
(3) For the purposes ofthis Part, a body corporate shall be taken to be habitually resident in a country
it is incorporated or has its principal place of business in that country.
Application of Part III
28.—(1) This Part shall apply to arbitration agreements made before 27th January 1995 as it applies to
arbitration agreements made on or after that date.
(2) This Part shall not apply to foreign awards made before 19th November 1986.
Recognition and enforcement of foreign awards
29.—(1) Subject to this Part, a foreign award may be enforced in a court either by action or in the same
manner as an award of an arbitrator made in Singapore is enforceable under section 19.
(2) Any foreign award which is enforceable under subsection (1) shall be recognised as binding for all
purposes upon the persons between whom it was made and may accordingly be relied upon by any
of those parties by way of defence, set-off or otherwise in any legal proceedings in Singapore.
Evidence
30.—(1) In any proceedings in which a person seeks to enforce a foreign award by virtue of this Part, he
shall produce to the court —
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original arbitration agreement under which the award purports to have been made, or
a duly certified copy thereof; and
(c) where the award or agreement is in a foreign language, a translation of it in the English lan-
guage, duly certified in English as a correct translation by a sworn translator or by an official
or by a diplomatic or consular agent of the country in which the award was made.
(2) A document produced to a court in accordance with this section shall, upon mere production, be
received by the court as prima facie evidence of the matters to which it relates.

Refusal of enforcement
31.—(1) In any proceedings in which the enforcement of a foreign award is sought by virtue of this
Part, the party against whom the enforcement is sought may request that the enforcement be
refused, and the enforcement in any of the cases mentioned in subsections (2) and (4) may be
refused but not otherwise.
(2) Acourt so requested may refuse enforcement of a foreign award if the person against whom enforce-
ment is sought proves to the satisfaction of the court that —
(a) aparty to the arbitration agreement in pursuance of which the award was made was, under the
law applicable to him, under some incapacity at the time when the agreement was made;
(b) the arbitration agreement is not valid under the law to which the parties have subjected it or,
in the absence of any indication in that respect, under the law of the country where the award
was made;
(c) he was not given proper notice of the appointment of the arbitrator or of the arbitration proceed-
ings or was otherwise unable to present his case in the arbitration proceedings;
(d) subject to subsection (3), the award deals with a difference not contemplated by, or not falling
within the terms of, the submission to arbitration or contains a decision on the matter beyond
the scope of the submission to arbitration;
(e) the composition of the arbitral authority or the arbitral procedure was not in accordance with
the agreement of the parties or, failing such agreement, was not in accordance with the law of the
country where the arbitration took place; or
(f) the award has not yet become binding on the parties to the arbitral award or has been set aside
or suspended by a competent authority of the country in which, or under the law of which, the
award was made.
(3) When a foreign award referred to in subsection (2)(d) contains decisions on matters not submit-
ted to arbitration but those decisions can be separated from decisions on matters submitted to
arbitration, the award may be enforced to the extent that it contains decisions on matters so
submitted.
(4) In any proceedings in which the enforcement of a foreign award is sought by virtue of this Part, the
court may refuse to enforce the award if it finds that —

390
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

(a) the subject-matter of the difference between the parties to the award is not capable of settlement
by arbitration under the law ofSingapore; or
(b) enforcement of the award would be contrary to the public policy of Singapore.
(5) Where, in any proceedings in which the enforcement of a foreign award is sought by virtue of this
Part, the court is satisfied that an application for the setting aside or for the suspension of the award
has been made to a competent authority of the country in which, or under the law of which, the
award was made, the court may —
(a) if che court considers it proper to do so, adjourn the proceedings or, as the case may be, so much
of the proceedings as relates to the award; and
(b) on the application of the party seeking to enforce the award, order the other party to give suitable
security.
32. [Repealed by Act 26/2009 wef01/01/2010)

Enforcement of awards under other provisions of law

33.—(1) Nothing in this Part shall affect the right of any person to enforce an arbitral award otherwise
than as is provided for in this Part.
(2) Notwithstanding section 3(5) of the Reciprocal Enforcement of Commonwealth Judgments Act
(Cap. 264), where a foreign award is both enforceable under this Part and registrable as a judgment
under that Act, proceedings to enforce the award under this Part may be commenced without any
disentitlement to recover any costs of the proceedings, unless otherwise ordered by the court.
(3) Notwithstanding section 7 of the Reciprocal Enforcement of Foreign Judgments Act (Cap. 265),
proceedings to enforce a foreign award under this Part may be commenced where the award is both
enforceable under this Part and registrable as a judgment under that Act.

PART IV GENERAL
Act to bind Government
34. This Act shall bind the Government.

Rules of Court
35. The Rules Committee constituted under section 80 of the Supreme Court of Judicature Act
(Cap. 322) may make Rules of Court regulating the practice and procedure of any court in respect of
any matter under this Act.

FIRST SCHEDULE
Section 2
UNCITRAL MODEL LAW ON INTERNATIONAL
COMMERCIAL ARBITRATION
(As adopted by the United Nations Commission on International
Trade Law on 21st June 1985)

FIRST SCHEDULE—continued
CHAPTER I GENERAL PROVISIONS

Article 1. Scope ofapplication*

(1) This Law applies to international commercial" arbitration, subject to any agreement in force between
this State and any other State or States.
(2) The provisions ofthis Law, except Articles 8, 9, 35 and 36, apply only ifthe place ofarbitration is in
the territoryof this State.
is international if:
(3) An arbitration
(a) the parties toanarbitration agreement have, atthe time ofthe conclusion of that agreement,
their places ofbusiness indifferent States; or
(b) one ofthefollowing places issituated outside theState inwhich theparties have their places of
business:
(i) the place of arbitration ifdetermined in, or pursuant to, the arbitration agreement;

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 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

(ii) any place where a substantial part of the obligations of the commercial relationship is to
be performed or the place with which the subject-matter of the dispute is most closely
connected; or
(c) the parties have expressly agreed that the subject-matter of the arbitration agreement relates to
more than one country.
(4) For the purposes of paragraph (3) of this Article:
(a) if party has more than one place of business, the place of business is that which has the closest
relationship to the arbitration agreement;
(b) if party does not have a place of business, reference is to be made to his habitual residence.
(5) This Law shall not affect any other law of this State by virtue of which certain disputes may_not be
submitted to arbitration or may be submitted to arbitration only according to provisions other than
those of this Law.
“Article headings are for reference purposes only and are not to be used for purposes of interpretation.
'The term “commercial” should be given a wide interpretation so as to cover matters arising from
all relationships of acommercial nature, whether contractual or not. Relationships of acommer-
cial nature include, but are not limited to, the following transactions: any trade transaction for
the supply or exchange of goods or services; distribution agreement; commercial representation
or agency; factoring; leasing; construction of works; consulting; engineering; licensing; invest-
ment; financing; banking; insurance; exploitation agreement or concession; joint venture and
other forms of industrial or business co-operation; carriage of goods or passengers by air, sea, rail
or road.

FIRST SCHEDULE—continued
Article 2. Definitions and rules ofinterpretation
For the purposes of this Law:
(a) “arbitration” means any arbitration whether or not administered by a permanent arbitral institution;
(b) “arbitral tribunal” means a sole arbitrator or a panel of arbitrators;
(c) “court” means a body or organ of the judicial system of a State;
(d) where a provision of this Law, except Article 28, leaves the parties free to determine a certain issue,
such freedom includes the right of the parties to authorise a third party, including an institution, to
make that determination;
(e) where aprovision of this Law refers to the fact that the parties have agreed or that they may agree or
in any other way refers to an agreement of the parties, such agreement includes any arbitration rules
referred to in that agreement;
(f) where a provision of this Law, other than in Articles 25(a) and 32(2)(a), refers to a claim, it also
applies to a counter-claim, and where it refers to a defence, it also applies to a defence to such
counter-claim.
Article 3. Receipt ofwritten communications
(1) Unless otherwise agreed by the parties:
(a) any written communication is deemed to have been received if it is delivered to the addressee per-
sonally or if it is delivered at his place of business, habitual residence or mailing address; if none
of these can be found after making a reasonable inquiry, a written communication is deemed to
have been received if it is sent to the addressee’s last-known place of business, habitual residence
or mailing address by registered letter or any other means which provides a record of the attempt
to deliver it;
(b) the communication is deemed to have been received on the day it is so delivered.
(2) The provisions of this Article do not apply to communications in court proceedings.
Article 4. Waiver ofright to object
A party who knows that any provision of this Law from which the parties may derogate or any require-
ment under the arbitration agreement has not been complied

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FIRST SCHEDULE—continued
with and yet proceeds with the arbitration without stating his objection to such non-compliance without
undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have
waived his right to object.
Article 5. Extent ofcourt intervention
In matters governed by this Law, no court shall intervene except where so provided in this Law.

Article 6. Court or other authority for certain functions ofarbitration assistance and supervision
The functions referred to in Articles 11(3), 11(4), 13(3), 14, 16(3) and 34(2) shall be performed ee
[Each State enacting this Model Law specifies the court, courts or, where referred to therein, other author-
ity competent to perform these functions. |

CHAPTER II ARBITRATION AGREEMENT

Article 7. Definition and form of arbitration agreement
(1) “Arbitration agreement” is an agreement by the parties to submit to arbitration all or certain disputes
which have arisen or which may arise between them in respect of a defined legal relationship, whether
contractual or not. An arbitration agreement may be in the form of an arbitration clause in a contract
or in the form of a separate agreement.
(2) The arbitration agreement shall be in writing. An agreement is in writing if it is contained in a docu-
ment signed by the parties or in an exchange of letters, telex, telegrams or other means of telecom-
munication which provide a record of the agreement, or in an exchange of statements of claim and
defence in which the existence of an agreement is alleged by one party and not denied by another.
The reference in a contract to a document containing an arbitration clause constitutes an arbitration
agreement provided that the contract is in writing and the reference is such as to make that clause part
of the contract.

Article 8. Arbitration agreement and substantive claim before court

(1) Acourt before which an action is brought in a matter which is the subject of an arbitration agreement
shall, if a party so requests not later than when submitting his first statement on the substance of the
dispute, refer the parties to arbitration unless it finds that the agreement is null and void, inoperative
or incapable of being performed.

‘ FIRST SCHEDULE—continued
(2) Where an action referred to in paragraph (1) of this Article has been brought, arbitral proceedings
may nevertheless be commenced or continued, and an award may be made, while the issue is pending
before the court.

Article 9. Arbitration agreement and interim measures by court

It is not incompatible with an arbitration agreement for a party to request, before or during arbitral pro-
ceedings, from a court an interim measure of protection and for a court to grant such measure.
CHAPTER III COMPOSITION OF ARBITRAL TRIBUNAL
Article 10. Number ofarbitrators
(1) The parties are free to determine the number of arbitrators.
(2) Failing such determination, the number of arbitrators shall be three.
Article 11. Appointment ofarbitrators
(1) No person shall be precluded by reason of his nationality from acting as an arbitrator, unless other-
wise agreed by the parties.
(2) Lams far name YM tothe
of appointing the arbitrator or arbitrators, subject
provisions ofpara gr
(4) ap
and (5) hs
ofthis Article.
(3) Failing such agreement,

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(a) in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two
arbitrators thus appointed shall appoint the third arbitrator; if a party fails to appoint the
arbitrator within thirty days of receipt of arequest to do so from the other party, or if the two
arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the
appointment shall be made, upon request ofa party, by the court or other authority specified
in Article 6;
(b) in an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall
be appointed, upon request of a party, by the court or other authority specified in Article 6.
(4) Where, under an appointment procedure agreed upon by the parties,
(a) aparty fails to act as required under such procedure; or ;
(b) the parties, or two arbitrators, are unable to reach an agreement expected of them under such
procedure; or

FIRST SCHEDULE—continued
(c) athird party, including an institution, fails to perform any function entrusted to it under such
procedure,
any party may request the court or other authority specified in Article 6 to take the necessary
measure, unless the agreement on the appointment procedure provides other means for securing
the appointment.
(5) A decision on a matter entrusted by paragraph (3) or (4) of this Article to the court or other
authority specified in Article 6 shall be subject to no appeal. The court or other authority, in
appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by
the agreement of the parties and to such considerations as are likely to secure the appointment
of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take
into account as well the advisability of appointing an arbitrator of a nationality other than those
of the parties.

Article 12. Grounds for challenge

(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall
disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independ-
ence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall
without delay disclose any such circumstances to the parties unless they have already been informed
of them by him.
(2) An arbitrator may be challenged only ifcircumstances exist that give rise to justifiable doubts as to his
impartiality or independence, or ifhe does not possess qualifications agreed to by the parties. A party
may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for
reasons of which he becomes aware after the appointment has been made.

Article 13. Challenge procedure

(1) ‘The parties are free to agree on a procedure for challenging an arbitrator, subject to the provisions of
paragraph (3) of this Article.
(2) Failing such agreement, a party who intends to challenge an arbitrator shall, within fifteen days after
becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circum-
stance referred to in Article 12(2), send a written statement of the reasons for the challenge to the
arbitral tribunal. Unless the challenged arbitrator withdraws from his office or the other party agrees
to the challenge, the arbitral tribunal shall decide on the challenge.
(3) If a challenge under any procedure agreed upon by the parties or under the procedure of paragraph
(2) of this Article is not successful, the challenging party

FIRST SCHEDULE—continued
may request, within thirty days after having received notice of the decision rejecting the challenge,
the court or other authority specified in Article 6 to decide on the challenge, which decision shall
be subject to no appeal; while such a request is pending, the arbitral tribunal, including the chal-
lenged arbitrator, may continue the arbitral proceedings and make an award.

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Article 14. Failure or impossibility to act

(1) [fan arbitrator becomes de jure or de facto unable to perform his functions or for other reasons fails
to act without undue delay, his mandate terminates if he withdraws from his office or if the parties
agree on the termination. Otherwise, if acontroversy remains concerning any of these grounds, any
party may request the court or other authority specified in Article 6 to decide on the termination of
the mandate, which decision shall be subject to no appeal.
(2) If, under this Article or Article 13(2), an arbitrator withdraws from his office or a party agrees to the
termination of the mandate of an arbitrator, this does not imply acceptance of the validity of any
ground referred to in this Article or Article 12(2).

Article 15. Appointment ofsubstitute arbitrator

Where the mandate of an arbitrator terminates under Article 13 or 14 or because of his withdrawal from
office for any other reason or because of the revocation of his mandate by agreement of the parties or in
any other case of termination of his mandate, a substitute arbitrator shall be appointed according to the
rules that were applicable to the appointment of the arbitrator being replaced.

CHAPTER IV JURISDICTION OF ARBITRAL TRIBUNAL

Article 16. Competence ofarbitral tribunal to rule on its jurisdiction
(1) ‘The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the
existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms
part of a contract shall be treated as an agreement independent of the other terms of the contract.
A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the inval-
idity of the arbitration clause.
(2) Aplea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission
of the statement of defence. A party is not precluded from raising such a plea by the fact that he has
appointed, or participated in the appointment of, an arbitrator. A plea that the arbitral tribunal is
exceeding the scope

FIRST SCHEDULE—continued
of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is
raised during the arbitral proceedings. The arbitral tribunal may, in either case, admit a later plea if it
considers the delay justified. |
(3) The arbitral tribunal may rule on a plea referred to in paragraph (2) of this Article either as a prelim-
“inary question or in an award on the merits. If the arbitral tribunal rules as a preliminary question
that it has jurisdiction, any party may request, within thirty days after having received notice of that
ruling, the court specified in Article 6 to decide the matter, which decision shall be subject to no
appeal; while such a request is pending, the arbitral tribunal may continue the arbitral proceedings
and make an award.

Article 17. Power ofarbitral tribunal to order interim measures

Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order any party
to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the
subject-matter of the dispute. The arbitral tribunal may require any party to provide appropriate security
in connection with such measure.
CHAPTER VCONDUCT OF ARBITRAL PROCEEDINGS
Article 18. Equal treatment ofparties
The parties shall be treated with equality and each party shall be given a full opportunity of presenting
his case.
Article 19. Determination ofrules ofprocedure
(1) Subject tothe provisions to be followed by
of this Law, the parties are free to agree on the procedure
the arbitral tribunal in conducting the proceedings.

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(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Law, conduct
the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral
tribunal includes the power to determine the admissibility, relevance, materiality and weight of any
evidence.

Article 20. Place of arbitration

(1) The parties are free to agree on the place of arbitration. Failing such agreement, the place of arbi-
tration shall be determined by the arbitral tribunal having regard to the circumstances of the case,
including the convenience of the parties.

FIRST SCHEDULE—continued
(2) Notwithstanding the provisions of paragraph (1) of this Article, the arbitral tribunal may, unless
otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its
members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or
documents.

Article 21. Commencement ofarbitral proceedings

Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute com-
mence on the date on which a request for that dispute to be referred to arbitration is received by the
respondent.
Article 22. Language
(1) The parties are free to agree on the language or languages to be used in the arbitral proceedings.
Failing such agreement, the arbitral tribunal shall determine the language or languages to be used in
the proceedings. This agreement or determination, unless otherwise specified therein, shall apply to
any written statement by a party, any hearing and any award, decision or other communication by
the arbitral tribunal.
(2) The arbitral tribunal may order that any documentary evidence shall be accompanied by a trans-
lation into the language or languages agreed upon by the parties or determined by the arbitral
tribunal.

Article 23. Statements ofclaim and defence

(1) Within the period of time agreed by the parties or determined by the arbitral tribunal, the claimant
shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the
respondent shall state his defence in respect of these particulars, unless the parties have otherwise
agreed as to the required elements of such statements. The parties may submit with their statements
all documents they consider to be relevant or may add a reference to the documents or other evidence
they will submit.
(2 Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence
—

during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate
to allow such amendment having regard to the delay in making it.

Article 24, Hearings and written proceedings

(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold
oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall
be conducted on the basis of documents

FIRST SCHEDULE—continued
and other materials. However, unless the parties have agreed that no hearings shall be held, the arbi-
tral tribunal shall hold such hearings at an appropriate stage of the proceedings, if so requested by
a party.
(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral
tribunal for the purposes of inspection of goods, other property or documents.

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(3) All statements, documents or other information supplied to the arbitral tribunal by one party shall
be communicated to the other party. Also any expert report or evidentiary document on which the
arbitral cribunal may rely in making its decision shall be communicated to the parties.

Article 25. Default ofa party

Unless otherwise agreed by the parties, if, without showing sufficient cause —
(a) theclaimant fails to communicate his statement of claim in accordance with Article 23(1), the arbitral
tribunal shall terminate the proceedings;
(b) the respondent fails to communicate his statement of defence in accordance with Article 23(1), the
arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission
of the claimant's allegations;
(c any party fails to appear at a hearing or to produce documentary evidence, the arbitral tribunal may
~—

continue the proceedings and make the award on the evidence before it.
Article 26. Expert appointed by arbitral tribunal
(1) Unless otherwise agreed by the parties, the arbitral tribunal —
(a) may appoint one or more experts to report to it on specific issues to be determined by the arbitral
tribunal;
(b) may require a party to give the expert any relevant information or to produce, or to provide access
to, any relevant documents, goods or other property for his inspection.
(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it
necessary, the expert shall, after delivery of his written or oral report, participate in a hearing where
the parties have the opportunity to put questions to him and to present expert witnesses in order to
testify on the points at issue.

FIRST SCHEDULE—continued
Article 27. Court assistance in taking evidence
The arbitral cribunal or a party with the approval of the arbitral tribunal may request from a competent
court of this State assistance in taking evidence. The court may execute the request within its competence
and according to its rules on taking evidence.

CHAPTERVI MAKING OF AWARD AND TERMINATION OF PROCEEDINGS

: Article 28. Rules applicable to substance ofdispute
(1) The arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the
parties as applicable to the substance of the dispute. Any designation of the law or legal system of a
given State shall be construed, unless otherwise expressed, as directly referring to the substantive law
of that State and not to its conflict of laws rules.
(2) Failing any designation by the parties, the arbitral tribunal shall apply the law determined by the
conflict of laws rules which it considers applicable.
(3) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have
expressly authorised it to do so.
(4) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall
take into account the usages of the trade applicable to the transaction.

Article 29. Decision-making bypanel ofarbitrators

In arbitral proceedings with more than one arbitrator, any decision of the arbitral tribunal shall be made,
unless otherwise agreed by the parties, by a majority of all its members. However, questions of procedure
may be decided by a presiding arbitrator, if so authorised by the parties or all members of the arbitral
tribunal.
Article 30. Settlement
during arbitral proceedings, theparties settle thedispute, thearbitral tribunal shall terminate the
re and, ifrequested bytheparties and not objected to bythearbitral tribunal, record the
settlement in the form of anarbitral award on agreed terms.

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that
(2) Anaward on agreed terms shall be made in accordance with the provisions of Article 31 and shall stare
it is an award. Such an award has the same status and effect as any other award on the merits of the case.

FIRST SCHEDULE—continued
Article 31. Form and contents ofaward
(1) The award shall be made in writing and shall be signed by the arbitrator or arbitrators. In arbitral pro-
ceedings with more than one arbitrator, the signatures of the majority of all members of the arbitral
tribunal shall suffice, provided that the reason for any omitted signature is stated.
(2) The award shall state the reasons upon which it is based, unless the parties have agreed that no reasons
are to be given or the award is an award on agreed terms under Article 30.
(3) The award shall state its date and the place of arbitration as determined in accordance with Article
20(1). The award shall be deemed to have been made at that place.
(4) After the award is made, a copy signed by the arbitrators in accordance with paragraph (1) of this
Article shall be delivered to each party.

Article 32. Termination ofproceedings

(1) The arbitral proceedings are terminated by the final award or by an order of the arbitral tribunal in
accordance with paragraph (2) of this Article.
(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings when:
(a) the claimant withdraws his claim, unless the respondent objects thereto and the arbitral tribunal
recognises a legitimate interest on his part in obtaining a final settlement of the dispute;
(b) the parties agree on the termination of the proceedings;
(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason
become unnecessary or impossible.
(3) The mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings,
subject to the provisions of Articles 33 and 34(4).

Article 33. Correction and interpretation ofaward; additional award

(1) Within thirty days of receipt of the award, unless another period of time has been agreed upon by the
parties:
(a) a party, with notice to the other party, may request the arbitral tribunal to correct in the award
any errors in computation, any clerical or typographical errors or any errors of similar nature;

FIRST SCHEDULE—continued
(b) ifso agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal
to give an interpretation of a specific point or part of the award.
If the arbitral tribunal considers the request to be justified, it shall make the correction or give the inter-
pretation within thirty days of receipt of the request. The interpretation shall form part of the award.
(2) The arbitral tribunal may correct any error of the type referred to in paragraph (1) (a) of this Article
on its own initiative within thirty days of the date of the award.
(3) Unless otherwise agreed by the parties, a party, with notice to the other party, may request, within
thirty days of receipt of the award, the arbitral tribunal to make an additional award as to claims
presented in the arbitral proceedings but omitted from the award. If the arbitral tribunal considers
the request to be justified, it shall make the additional award within sixty days.
(4) The arbitral tribunal may extend, if necessary, the period of time within which it shall make a correc-
tion, interpretation or an additional award under paragraph (1) or (3) of this Article.
(5) The provisions of Article 31 shall apply to a correction or interpretation of the award or to an
additional award.

CHAPTER VII RECOURSE AGAINST AWARD

Article 34. Application for setting aside as exclusive recourse against arbitral award
(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in
accordance with paragraphs (2) and (3) of this Article.

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(2) An arbitral award may be set aside by the court specified in Article 6 only if: (a) the party making the
application furnishes proof that:
(i) a party to the arbitration agreement referred to in Article 7 was under some incapacity; or the
said agreement is not valid under the law to which the parties have subjected it or, failing any
indication thereon, under the law of this State; or
(ii) the party making the application was not given proper notice ofthe appointment of an arbitrator
or of the arbitral proceedings or was otherwise unable to present his case; or

FIRST SCHEDULE—continued
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the sub-
mission to arbitration, or contains decisions on matters beyond the scope of the submission to
arbitration, provided that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, only that part of the award which contains decisions on matters
not submitted to arbitration may be set aside; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the
agreement of the parties, unless such agreement was in conflict with a provision of this Law from
which the parties cannot derogate, or, failing such agreement, was not in accordance with this
Law; or
(b) the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law of this
State; or
(ii) the award is in conflict with the public policy of this State.
(3) An application for setting aside may not be made after three months have elapsed from the date
on which the party making that application had received the award or, if a request had been
made under Article 33, from the date on which that request had been disposed of by the arbitral
tribunal.
(4) The court, when asked to set aside an award, may, where appropriate and so requested by a party,
suspend the setting aside proceedings for a period of time determined by it in order to give the arbi-
tral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the
arbitral tribunal’s opinion will eliminate the grounds for setting aside.

CHAPTER VIII RECOGNITION AND ENFORCEMENT OF AWARDS*

Article 35. Recognition and enforcement
(i) An arbitral award, irrespective of the country in which it was made, shall be recognised as binding
and, upon application in writing to the competent court, shall be enforced subject to the provisions
of this Article and of Article 36.
(2) The party relying on an award or applying for its enforcement shall supply the duly authenticated
original award or a duly certified copy thereof, and the original arbitration agreement referred to in
Article 7 or a duly certified copy thereof. Ifthe
* Chapter VIII does not have the force of law in Singapore by virtue of section 3 (1).

FIRST SCHEDULE—continued
award or agreement is not made in an official language of this State, the party shall supply a duly certified
translation thereof into such language.’
Article 36. Grounds for refusing recognition or enforcement
(1) Recognition or enforcement of an arbitral award, irrespective of the country in which it was made,
may be refused only:
(a) atthe request ofthe party against whom it isinvoked, if that party furnishes to the competent
court where recognition or enforcement is sought proof that:
(i) a party tothe arbitration agreement referred toin Article 7 was under some incapacity; or
the said agreement isnotvalid under thelawto which theparties have subjected it or,failing
any indication thereon, under thelaw ofthe country where the award was made; or

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(ii) the party against whom the award is invoked was not given proper notice of the appoint-
ment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his
case; or
(iii) the award deals with a dispute not contemplated by or not falling within the terms of the
submission to arbitration, or it contains decisions on matters beyond the scope of the sub-
mission to arbitration, provided that, if the decisions on matters submitted to arbitration
can be separated from those not so submitted, that part of the award which contains deci-
sions on matters submitted to arbitration may be recognised and enforced; or
(iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with
the agreement of the parties or, failing such agreement, was not in accordance with the law
of the country where the arbitration took place; or
(v) the award has not yet become binding on the parties or has been set aside or suspended by a
court of the country in which, or under the law of which, that award was made; or
(b) if the court finds that:
(i) the subject-matter of the dispute is not capable of settlement by arbitration under the law
of this State; or
t The conditions set forth in this paragraph are intended to set maximum standards. It would, thus, not
be contrary to the harmonisation to be achieved by the Model Law if a State retained even less onerous
conditions.

FIRST SCHEDULE—continued
(ii) the recognition or enforcement of the award would be contrary to the public policy of
this State.
(2) If an application for setting aside or suspension of an award has been made to a court referred to in
paragraph (1) (a) (v) of this Article, the court where recognition or enforcement is sought may, if it
considers it proper, adjourn its decision and may also, on the application of the party claiming recog-
nition or enforcement of the award, order the other party to provide appropriate security.

SECOND SCHEDULE
Section 27(1)
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS CONCLUDED AT NEW YORK ON 10TH JUNE 1958

ARTICLE I
1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the terri-
tory ofa State other than the State where the recognition and enforcement of such awards are sought,
and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral
awards not considered as domestic awards in the State where their recognition and enforcement are
sought.
2. ‘The term “arbitral awards” shall include not only awards made by arbitrators appointed for each case
but also those made by permanent arbitral bodies to which the parties have submitted.
3. When signing, ratifying or acceding to this Convention, or notifying extension under Article X
hereof, any State may on the basis of reciprocity declare that it will apply the Convention to the rec-
ognition and enforcement of awards made only in the territory of another Contracting State. It may
also declare that it will apply the Convention only to differences arising out of legal relationships,
whether contractual or not, which are considered as commercial under the national law of the State
making such declaration.

ARTICLE II
1. Each Contracting State shall recognise an agreement in writing under which the parties undertake
to submit to arbitration all or any differences which have arisen or which may arise between them in
respect of a defined legal relationship, whether contractual or not, concerning a subject-matter cap-
able of settlement by arbitration.

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SECOND SCHEDULE—continued
‘The term “agreement in writing” shall include an arbitral clause in a contract or an arbitration agree-
ment, signed by the parties or contained in an exchange of letters or telegrams.
The court of a Contracting State, when seized of an action in a matter in respect of which the parties
have made an agreement within the meaning of this Article, shall, at the request of one of the parties,
refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or
incapable of being performed. [26/2009 wef 01/01/2010]

ARTICLE III
Each Contracting State shall recognise arbitral awards as binding and enforce them in accordance with
the rules of procedure of the territory where the award is relied upon, under the conditions laid down in
the following Articles. There shall not be imposed substantially more onerous conditions or higher fees or
charges on the recognition or enforcement of arbitral awards to which this Convention applies than are
imposed on the recognition or enforcement of domestic arbitral awards.

ARTICLE IV
l. To obtain the recognition and enforcement mentioned in the preceding Article, the party applying
for recognition and enforcement shall, at the time of the application, supply —
(a) the duly authenticated original award or a duly certified copy thereof;
(b) the original agreement referred to in Article II or a duly certified copy thereof.
If the said award or agreement is not made in an official language of the country in which the award is
relied upon, the party applying for recognition and enforcement of the award shall produce a transla-
tion of these documents into such language. The translation shall be certified by an official or sworn
translator or by a diplomatic or consular agent.

ARTICLEV
Recognition and enforcement of the award may be refused, at the request of the party against whom
it is invoked, only if that party furnishes to the competent authority where the recognition and
enforcement is sought, proof that —
(a) the parties to the agreement referred to in Article II were, under the law applicable to them,
under some incapacity, or the said agreement is not valid under the law to which the parties have
subjected it or, failing any indication thereon, under the law of the country where the award was
made; or

SECOND SCHEDULE—continued
(b) the party against whom the award is invoked was not given proper notice of the appointment of
the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; or
(c) the award deals with a difference not contemplated by or not falling within the terms of the sub-
mission to arbitration, or it contains decisions on matters beyond the scope of the submission to
arbitration, provided that, if the decisions on matters submitted to arbitration can be separated
from those not so submitted, that part of the award which contains decisions on matters submit-
ted to arbitration may be recognised and enforced; or
(d) the composition of the arbitral authority or the arbitral procedure was not in accordance with the
agreement of the parties, or, failing such agreement, was not in accordance with the law of the
country where the arbitration took place; or
(ec) the award has not yet become binding on the parties, or has been set aside or suspended by a
competent authority ofthe country in which, or under the law of which, that award was made.
Recoand gnit ofanarbitral award may also berefused if the competent authority in
enforcement ion
the country where recognition and enforcemen t that—
issought finds
(a) the subject-matter ofthe difference is not capable ofsettlement byarbitration under the law of
that country; or
(b) the recognition or enforcement of the award would be contrary tothe public policy ofthat
country.

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ARTICLEVI
If anapplication for the setting aside or suspension ofthe award has been made to a competent authority
referred to in Article V (1) (e), the authority before which the award is sought to be relied upon may, if it
considers it proper, adjourn the decision on the enforcement of the award and may also, on the applica-
tion of the party claiming enforcement of the award, order the other party to give suitable security.
ARTICLE VII
1. The provisions of the present Convention shall not affect the validity of multilateral or bilateral
agreements concerning the recognition and enforcement of arbitral awards entered into by the
Contracting States nor deprive any interested party of any right he may have to avail himself of an
arbitral award in the manner and to the extent allowed by the law or the treaties of the country where
such award is sought to be relied upon.

SECOND SCHEDULE—continued
2. The Geneva Protocol on Arbitration Clauses of 1923 and the Geneva Convention on the Execution
of Foreign Arbitral Awards of 1927 shall cease to have effect between Contracting States on their
becoming bound and to the extent that they become bound, by this Convention.
ARTICLE VII
1. This Convention shall be open until 31st December 1958 for signature on behalf of any Member of
the United Nations and also on behalf of any other State which is or hereafter becomes a member of
any specialised agency of the United Nations, or which is or hereafter becomes a party to the Statute
of the International Court of Justice, or any other State to which an invitation has been addressed by
the General Assembly of the United Nations.
2. This Convention shall be ratified and the instrument of ratification shall be deposited with the
Secretary-General of the United Nations.

ARTICLE IX
This Convention shall be open for accession to all States referred to in Article VIII.
SS Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of
the United Nations.

ARTICLE X
1. Any State may, at the time of signature, ratification or accession, declare that this Convention shall
extend to all or any of the territories for the international relations of which it is responsible. Such a
declaration shall take effect when the Convention enters into force for the State concerned.
2. At any time thereafter any such extension shall be made by notification addressed to the Secretary-
General of the United Nations and shall take effect as from the ninetieth day after the day of receipt
by the Secretary-General of the United Nations of this notification, or as from the date of entry into
force of the Convention for the State concerned, whichever is the later.
3. With respect to those territories to which this Convention is not extended at the time of signature,
ratification or accession, each State concerned shall consider the possibility of taking the necessary
steps in order to extend the application of this Convention to such territories, subject, where neces-
sary for constitutional reasons, to the consent of the Governments of such territories.

SECOND SCHEDULE—continued
ARTICLE XI

In the case of a federal or non-unitary State, the following provisions shall apply:
(a) with respect to those Articles of this Convention that come within the legislative jurisdiction of the
federal authority, the obligations of the federal Government shall to this extent be the same as those
of Contracting States which are not federal States;

402
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

(b) with respect to those Articles of this Convention that come within the legislative jurisdiction of
constituent States or provinces which are not, under the constitutional system of the federation,
bound to take legislative action, the federal Government shall bring such articles with a favourable
recommendation to the notice of the appropriate authorities of constituent States or provinces at the
earliest possible moment;
_ie) ~ a federal State Party to this Convention shall, at the request of any other Contracting State trans-
mitted through the Secretary-General of the United Nations, supply a statement of the law and
practice of the federation and its constituent units in regard to any particular provision of this
Convention, showing the extent to which effect has been given to that provision by legislative or
other action.

ARTICLE XII
1. ‘This Convention shall come into force on the ninetieth day following the date of deposit of the third
instrument of ratification or accession.
2. For each State ratifying or acceding to this Convention after the deposit of the third instrument of
ratification or accession, this Convention shall enter into force on the ninetieth day after deposit by
such State of its instrument of ratification or accession.

ARTICLE XIII
1. Any Contracting State may denounce this Convention by a written notification to the Secretary-
General of the United Nations. Denunciation shall take effect one year after the date of receipt of the
notification by the Secretary-General. .
2. Any State which has made a declaration or notification under Article X may, at any time thereafter,
by notification to the Secretary-General of the United Nations, declare that this Convention shall
cease to extend to the territory concerned one year after the date of the receipt of the notification by
the Secretary-General.
3. This Convention shall continue to be applicable to arbitral awards in respect of which recognition or
enforcement proceedings have been instituted before the denunciation takes effect.

SECOND SCHEDULE—continued
ARTICLE XIV
A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting
States except to the extent that it is itself bound to apply the Convention.

ARTICLE XV

The Secretary-General of the United Nations shall notify the States contemplated in Article VIII of the
following:
(a) signatures and ratifications in accordance with Article VIII;
(b) accessions in accordance with Article IX;
(c) declarations and notifications under Articles I, X and XI];
(d) the date upon which this Convention enters into force in accordance with Article XII;
(e) denunciations and notifications in accordance with Article XIII.

ARTICLE XVI
1. This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally
authentic, shall be deposited in the archives of the United Nations.
2. The Secretary-General ofthe United Nations shall transmit a certifiedcopy ofthisConvention to the
States contemplated in Article VIII.
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

LEGISLATIVE HISTORY
INTERNATIONAL ARBITRATION ACT

(CHAPTER 143A)
This Legislative History is provided for the convenience of users of the International Arbitration Act. It
is not part of this Act.
1. Act 23 of 1994—International Arbitration Act 1994
Date of First Reading: 25 July 1994
(Bill No. 14/94 published on 29 July 1994)
Date of Second and Third Readings: 31 October 1994
Date of commencement: 27 January 1995
2. 1995 Revised Edition—International Arbitration Act
Date of operation: 15 March 1995
3. Act 38 of 2001—International Arbitration (Amendment) Act 2001
Date of First Reading: 25 September 2001
(Bill No. 38/2001 published on 26 September 2001)
Date of Second and Third Readings: 5 October 2001
Date of commencement: 1 November 2001
4. Act 28 of 2002—International Arbitration (Amendment) Act 2002
Date of First Reading: 27 August 2002
(Bill No. 28/2002 published on 28 August 2002)
Date of Second and Third Readings: 1 October 2002
Date of commencement: 25 October 2002
5. 2002 Revised Edition—International Arbitration Act
Date of operation: 31 December 2002
6. Act 42 of 2005—Statutes (Miscellaneous Amendments) (No. 2) Act 2005
Date of First Reading: 17 October 2005
(Bill No. 30/2005 published on 18 October 2005)
Date of Second and Third Readings: 21 November 2005
Dates of commencement: Ist January 2006
7. Act 26 of 2009—International Arbitration (Amendment) Act 2009
Date of First Reading: 14 September 2009
(Bill No. 20/2009)
Date of Second and Third Readings: 14 October 2009
Date of commencement: | January 2010
8. Act 13 of 2012—Foreign Limitation Periods Act 2012
Date of First Reading: 8 March 2012
(Bill No. 11/2012 published on 8 March 2012)
Date of Second and Third Readings: 9 April 2012
Date of commencement: 1 June 2012
9. Act 12 of 2012—International Arbitration (Amendment) Act 2012
Date of First Reading: 8 March 2012
(Bill No. 10/2012 published on 8 March 2012)
Date of Second and Third Readings: 9 April 2012
Date of commencement: | June 2012
10. Act 16 of 2016—Statutes (Miscellaneous Amendments) Act 2016
Date of First Reading: 14 April 2016 (Bill No. 15/2016 published on 14 April 2016).
Date of Second and Third Readings: 9 May 2016
Date of commencement: 1 August 2016

404
 Appendix 4: Singapore International Arbitration Act (Chapter 143A)

COMPARATIVE TABLE
INTERNATIONAL ARBITRATION ACT

(CHAPTER 143A)
The following provisions in the 1995 Revised Edition of the International Arbitration Act have been
renumbered by the Law Revision Commissioners in this 2002 Revised Edition.
This Comparative Table is provided for the convenience of users. It is not part of the International
ArbitrationAct.

2002 Ed. 1995 Ed.

10—(1) and (2) 10

12—(4) 12—(3A)
(5) 4)
(6) (5)
(7) (6)
Omitted 36

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 i ’ mo © VAP

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2G) Merten Bitchy tyerneetaesd Anticrm!sn
.! S Weemaacr Let
Fact ection
 INDEX

ad hoc arbitration 1.15, 1.59, 3.37, 3.45 3.2 overview of 1976 and 2010 Rules 17.28-17.34
17.01-17.38 scrutiny of awards 17.37
advantages 17.07 additional parties see joinder and additional parties
agreement ofthe parties 17.03, 17.20-17.22 administrative (tribunal) secretaries 8.22-8.25
arbitration commission 17.08 appropriate cases 8.23
arbitrators 17.15 confidentiality 8.22, 8.24
appointment 2.73, 17.15-17.19, 17.35 exclusion of liabiliry 8.22
payment 17.21 fees and expenses 8.22, 15.23-15.24
authentication 2.79 impartiality and independence 8.24
case management 17.21, 17.37 adverse costs order 12.32
commencement 5.14 affidavits 18.10—18.12
costs and fees 17.07, 17.20-17.21 agreement ofthe parties 6.14, 16.16, 17.03,
early dismissal of claims and defences 11.13 17.20-17.22
exceptional circumstances 17.35 amiable compositeur (amiable composition) 2.21,
financial management 17.21, 17.37 12.75-12.79
flexibility 17.07 appeal 2.48, 2.66, 8.114-8.115
hybrid arbitration 17.21 Arbitration Act 2002 (Singapore) 2.91, 14.47
investment treaties 1.43, 17.33 emergency arbitration 13.17
list procedure 17.35 High Court 2.54-2.55, 2.66, 2.83
multi-party arbitration 17.35 mandatory law 5.19
Permanent Court of Arbitration Secretary- rights 8.114-8.115
General: SIAC selection 17.23-17.27, 17.31 applicable law 12.55-12.83
risks 17.08-17.09 amiable compositeur 12.75-12.79
scrutiny of awards 17.37 equity and fairness 12.77
SIAC Rules 3.12, 17.09-17.11, 17.34 ex aequo et bono 12.75-12.76, 12.78-12.79
SIAC support 17.15-17.38 implied choice of law 12.66-12.67
Singapore law 17.17-17.19 lex mercatoria 12.59, 12.77
sole arbitrator 17.11, 17.35 non-national law 12.59-12.60
State and State entities 17.33 party autonomy 12.56-12.60
statutory power and responsibility 17.18 separability principle 12.64, 12.71-12.74
submission to arbitration 17.06 terms of contract and trade usages 12.80-12.83
substitute arbitrator 17.35 transnational law 12.59-12.60
three arbitrators 17.35 tribunal’s choice of law 12.61-12.63
transparency rules 17.32 voie directe (direct route) method 12.61-12.62
truncated tribunal 17.35 appointment of arbitrators 3.17, 8.05 8.17, 8.12-8.25
UNCITRAL Arbitration Rules 17.05, 17.16, ad hoc arbitration 2.73, 17.15-17.19, 17.35
17.23, 17.25 administrative (tribunal) secretaries 8.22—8.25
1976 17.28, 17.31, 17.36, 17.38 as soon as practicable 8.15
2010 17.30, 17.32, 17.36, 17.38 confidentiality 8.22, 8.24
2013 17.32 corruption 8.14
appointment of arbitrators by SIAC in cases court supervision and assistance 2.73
emergency arbitrators 8.15
exceptional circumstances 8.14, 8.21
Secretary-General 17.23, 17.25 fair, expeditious and economical resolution 8.19
SIAC support of cases conducted impartiality and independence 8.14, 8.16, 8.19, 8.24
under 17.27-17.38 multi-party see multi-party appointment of
appointment of arbitrators by SIAC in cases arbitrators
party autonomy principle 8.14
President (SIAC) 2.73, 8.12-8.17
qualifications,
lack of 8.14, 8.16
other services provid SIAC 17.36-17.38
byed remuneration 8.20-8.22
 Index

appointment of arbitrators (cont.) additional awards 3.17, 14.56-14.57,

revocation 7.40—7.47, 7.55, 7.77—7.80, 7.88-—7.89 14.64-14.69, 14.76
terms of appointment 8.18—8.21 arbitration costs see costs and fees
arbitrability 10.11, 10.24-10.29 authentication and arbitration
Arbitration Act 2002 (Singapore) 2.45—2.49, 18.02 agreements 2,76—2.80
amendments 2.49 binding nature 14.42-14.44, 14.76
awards 14,19, 14.37, 14.47 binding nature, exceptions to 14.45-14.49
Board of Directors 4.07 challenge see challenge of awards
challenge against jurisdiction rulings 2.82, 2.85 closure of proceedings 14.09-14.13
confidentiality 16.16-16.17 consent awards 14.08, 14.19, 14.23, 14.39-14.41
costs assessment 2.74—2.75 correction of an award 14.57-14.63, 14.76
domestic arbitration 3.33 costs, award on 14.08
early dismissal 11.50-11.51 decisions qualifying for 14.02-14.04
enforcement 2.60, 2.62—2.63, 2.72, 2.113, domestic international awards 2.30, 2.32
2.121—2.122 due process 14.46
exclusion ofliability 16.04-16.05, 16.08 emergency arbitration 14.04, 14.07, 14.22, 14.49
expedited proceedings 6.35 enforcement see enforcement of awards
interim relief 2.70, 13.12, 13.15 expedited proceedings 14.22
jurisdiction 10.08, 10.18 final award 14.05
legislative framework see legislative framework ‘foreign award’ 2.117—2.121
for arbitration fraud or corruption 14.46
mandatory law 5.18 interest payments 14.36-14.38
natural justice rules, breach of 2.100 interim award 8.125, 14.02, 14.05
Notice of Arbitration 5.51 see also interim relief
party costs 15.70 interlocutory award 14.02
party representatives 9,92 interpretation of an award 14.56-14.57,
scope 2.45-—2.46 14.70-14.74, 14.76
set-aside applications 2.90—2.91, 2.95, 14.56 issue of award by Registrar 14.34-14.35
terms 2.47—2.48 jurisdiction rulings 14.46
tribunal powers 12.37, 12.40 majority rulings 14.33
witnesses 9,111 multiple awards 14.26-14.27
arbitration agreement 2.43, 5.49-5.53 natural justice, breach of 14.46
applicable law 12.64-12.74 non-arbitrable dispute 14.46
authentication 2.76—2.80 partial awards 8.125, 14.02, 14.05, 14.56
contrary terms 6,38-6.42 public policy, conflict with 14.46
enforcement 2.60-2.65 publication 14.50-14.54, 16.38, 19.10, 19.37-19.38
scope 10.21-10.23 reasoned award or order 11.47-11.51, 14.22-14.25
arbitration clause 1.19 redacted 3.20
arbitration commission 17.08 res judicata doctrine 14.43
Arbitration (International Investment Disputes) scrutiny of see scrutiny of awards
Act 2012 2.06, 2.51, 2.123 setting aside 14,23, 14.46, 14.48
arbitrators 3.25, 17.15 substance of dispute 14.02-14.04
appointment see appointment of arbitrators substantive issues 14.20
bias, undisclosed 2.102 summary awards see summary of awards
challenge of see challenge of arbitrators time limits 14.09-14.13, 14.16, 14.75
emergency arbitrators see emergency arbitrators uncooperative arbitrator 14.28-14,.32
fees and expenses see costs and fees waiver of rights 14.46
nomination of 5.62-5.65, 5.87—5.90, 8.34
number of see number of arbitrators bad faith 2.102
payment 17.21 balance of convenience 13.75—13.76
qualifications see qualifications of arbitrators balance of probabilities 2.119
replacement see replacement of arbitrator Board of Directors (SIAC) 1.58, 3.05-3.07,
substitute arbitrator 17.35 4.04-4.08 1
uncooperative arbitrator 14.28-14,32 composition 4,05
voluntary withdrawal 8.101-8.104 functions 4,06
Arb-Med-Arb protocol see Mediation-Arbitration judicial support 1.15, 1.20
procedure powers 4.07~4,08
authentication 2.76-2.80, 15.15 SIAC Rules 3.17, 5.25
awards 3.45 3.1f, 14.01-14.76 breach ofduty 16.39
408
 Index

bunker claims procedure 3.38 qualifications of arbitrators 8.55, 8.62, 8.75, 8.83
burden of proof 11.36 commencement of arbitration 3.25, 3.45 3.1f
5.01-5.95
case management 4.10, 17.21, 17.37 ad hoc arbitration 5.14
cases, number of, administered by arbitral notice of arbitration see Notice of Arbitration
institutions 1.51 1.1¢ notice and calculation of periods of time 5.26—5.44
Chairman (SIAC) 2.43, 3.11, 3.17, 4.06-4.07, 4.10, available options for effecting service 5.29-5.37
4.14, 4.19 calculation of periods of time 5.39-5.42
ad hoc arbitration 17.25 copies to be filed with Registrar 5.43
domestic arbitration 3.34 date of receipt 5.38
expedited proceedings 6.21—6.23 prior dealings 5.32—5.33
challenge of arbitrators 2.66, 8.878.126 reasonable efforts 5.35—5.36
against partys own nominee 8.89 Registrar's power to amend time limits 5.44
court supervision and assistance 2.66 response to notice see Response to Notice of
decision on challenge 8.108—8.115 Arbitration
appeal rights 8.114~-8.115 scope of application and interpretation 5.02—5.25
reasoned decision 8.113 ad hoc arbitration 5.14
by SIAC Court 8.109-8.112 amendments to Rules 5.25
time limits 8.110 defined terms 5.21—5.24
formation of tribunal 8.87—8.89 hybrid arbitration agreement 5.09
functions, failure to fulfil 8.87 mandatory law 5.16—5.20
Investment Arbitration Rules 19.20 misspelt or inaccurate references 5,11—5.13
justifiable doubts model arbitration clause 5.04
on independence or impartiality 8.87—8.89, 8.110 parties must agree to application of SIAC
on qualifications 8.87—8.89 Rules 5.03-5.06
notice of challenge see Notice of Challenge pathological clauses 5.07—5.15
physically or legally unable to continue in office 8.87 place of incorporation 5.14
removal through agreement of the parties 8.87 Committee of the Court 4.11, 10.06
repeat of hearings held prior to replacement 8.87 common law 1.22-1.23, 1.36, 2.33, 3.25, 9.121,
replacement see replacement of arbitrator 16.13, 19.22
resignation, voluntary 8.87 compatibility requirement 7.68—7.69
standards for challenging 8.88 competence-competence principle 2.18, 10.01,
suspension of arbitration 8.87 10.11-10.18
vacation of position ordered by SIAC Court 8.87 conduct of proceedings 3.17, 9.01—9.132
challenge of awards 2.81—2.123 equal treatment 9.08
jurisdiction 2.82-2.85 evidence: relevance, materiality and
set-aside applications 2.92-2.99 admissibility 9.16-9.17
Singapore award 2.86-2.91 exceptional circumstances 9,28
set-aside applications under the Arbitration Act expedited proceedings see expedited proceedings
(2002) 2.90-2.91 fair, expeditious and economical resolution 9.03,
set-aside applications under International 9.06-9.14, 9.24, 9.32
Arbitration Act (2002) 2.86—2.89 finality 9.15
specific grounds 2.100-2.112 hearings see hearings
fraud or corruption 2.101—2.104 inquisitorial powers of
natural justice, breach of rules of 2.100 tribunal: bifurcation 9.24—9.26
public policy 2.105—2.112 language of arbitration see language of arbitration
challenge to jurisdiction see under tribunal jurisdiction Memorandum of Issues 9.23
change of circumstances 12.05 preliminary meeting 9.18—9.22
choice of law (tribunal) 12.61—12.63 procedural issues 9.19, 9.27—9.29
civil law 1.22-1.23, 2.20-2.21, 2.36, 9.26, 9.121 procedural timetable 9.20
representation see party
Statement of Claim right to be heard 9.08, 9.11
closureofproceedings 14.09-14.13 seat of arbitration see seat ofarbitration
co-arbitrators 8.42 statement of claim see Statement ofClaim
Code of Ethics 3.17, 6.02 statement of defence seeStatement of Defence
of arbitrators 8.18 statements and documents simultaneously
communicated to other party 9.30-9.31
submissions by the parties seesubmissions
tribunal-appointed experts seeexperts
 Index
ae

conduct of proceedings (cont.) of errors 18.21

tribunal responsibility for conduct 9.04-9.05 corruption see fraud or corruption
witnesses see witnesses costs and fees 3.25, 15.01—15.70
confidentiality 3.17, 3.25, 16.11-16.39 ad hoc arbitration 17.07, 17.20-17.21
administrative (tribunal) secretaries 8.22, 8.24 ad valorem basis 3.13, 3.25, 8.20, 15.13, 15.15,
agreement of the parties 16.16 15.17-15.19, 15.21, 15.29, 15.55
appointment ofarbitrators 8.22, 8.24 al
addition fees 15.50, 15.60
Arbitration Act (2002) 16.16-16.17 administration fees 3.25, 3.31, 13.60, 15.29 15.12,
at hearings 9.105—9.106 15.32, 15.50
breach of duty 16.39 administrative (tribunal) secretaries 8.22,
Code of Ethics 16.21 15.23-15.24
common law 16.13 advance on costs 3.20, 15.33-15.34, 15.37, 15.44
consolidation provisions 16.33 adverse costs order 12.32
court supervision and assistance 2.68 amounts in dispute 1.51
damages 16.39 appointment of arbitrators 8.20—8.22
disclosure of information 16.18-16.19, 16.26-16.34 appointment fees 15.15
exceptions 16.18-16.19, 16.25-16.34 arbitrators 3.17, 3.25, 15.15-15.25
hearings 9.105—9.106 assessment 2.74—2.75
implied duty 16.13-16.14 authentication fees 15.15
injunction 16.39 award of costs 14.08, 15.43
International Arbitration Act (2002) 16.16-16.17 certification fees 15.15
Investment Arbitration Rules 3.29, 19.31, challenge fees 8.97—8.98, 15.15
19.35-19.38 comparisons
joinder provisions 16.33 HKIAC arbitration 15.01, 15.28-15.29 15.1¢
lex arbitri 16.11 ICC arbitration 15.01, 15.28-15.29 15.1¢
market-traded securities 16.30 court supervision and assistance costs
order for costs 16.39 assessment 2.74-2.75
publication of awards 16.38 deposits 15.30-15.50
relief from tribunal 13.06 dismissal of claim or counterclaim 15.44
scope of duty 16.35-16.37 domestic arbitration 18.04, 18.20
serious crime 16.30 early dismissal of claims and defences 11.52-11.54
SIAC Rules 16.11, 16.20-16.23 emergency arbitration 15.07, 15.10, 15.15, 15.51
exceptions 16.25-16.34 exceptional circumstances 15.50, 15.55, 15.60
scope of duty 16.35-16.37 expenses (emergency relief) 13.60
UNCITRAL Model Law (1985) 2.38 experts 15.25
conflicts of interest 5.65, 5.89, 8.64, 8.66, 8.75, 8.84 filing fees 3.40, 5.68, 5.74, 7.58, 15.10, 15.12,
consolidation 1.59, 3.29, 7.59-7.92, 16.33 15.29 15.1¢
compatibility requirement 7.68-7.69 for counterclaim 5.91—5.92
decision of the Court 7.74-7.75 and deposit on costs 13.31-13.33
decision to grant application 7.85 fixed fees 13.60
fair, expeditious and economical resolution 7.73 fundholding fees 17.21
information to be included in application 7.70, 7.85 indemnity costs 15.66
into arbitration which is deemed to have commenced interim or partial awards/payments 15.52,
first 7.77-7.78 15.61-15.62
opportunity to be heard 7.86—7.87 International Arbitration Act 2002 (Singapore) 2.74
pending arbitrations 7,.64—7.67 Investment Arbitration Rules 3.30—3.32
prior to constitution of tribunal 7.62-7.69 joint and several liability 15.41-15.42
provisions 16.33 legal costs 15.10
relevant considerations 7.72—7.23 litigation costs compared 15.02-15.09
revocation of appointment of arbitrators 7.77-7.80, ‘off-scale’ 8.21
7.88-7.89 order for costs 16.39
subsequent application to Tribunal 7.76 out-of-pocket expenses 15.63
of two or more arbitrations into single party costs 15,26, 15.64-15.70 :
arbitration 7,.81-7.84 per diem allowance 15.22, 15.63
waiver of right to nominate an arbitrator 7.90-7.92 potential costs 15.02
constitution of tribunal 3.29, 19.16—19.20 provisional estimate 15.38-15.39
contract rectification 5.08, 12.05—12.07 reasonable costs 15.66
correction 3.17 refunds 15.47-15.48
of an award 14.57-14.63, 14.76 relief from emergency arbitrator 13.60-13.61

410
 Index

Secretariat's fees see Secretariat (SLAC) correction of errors 18.2]

SIAC costs and fees 15.10—15.27, 15.51-15.54 costs and fees 3.34, 18.04, 18.20
sliding scale 15.13 Domestic Arbitration Rules 3.33—3.36, 12.43,
sole arbitrator 15.07, 15.29 15.14, 15.33 18.02—18.05, 18.23-18.26
summary judgments 15.45 awards 14.08
suspension of claim 15.43 expedited procedure 3.34
taxation fees 15.15, 15.67 management fee 3.34
third-party funding 1.06, 3.29, 15.68, 19.21-19.26 summary award 3.35—3.36
three arbitrators 15.29 15.14, 15.33, 15.59 expedited procedure 3.34, 18.04
transaction fees 17,21 frivolous claim 18.22
tribunal fees 15.29, 15.51—-15.53, 15.55-15.63 International Arbitration Act 2002 (Singapore) 2.27
see also Schedule of Fees oral hearing 18.14
counterclaims 5.83—5.84, 6.11—6.13, 9.54, right of parties to refer questions of law 18.04
10.41—10.42, 15.44 security provision 18.18-18.19
counterclaims, Statement of Counterclaim 5.92—5.94 summary awards see summary awards
Court of Appeal (Singapore) 2.22, 2.53, 2.55—2.56 double control 2.31
applicable law 12.70 due process 14.46
awards 14.48 paranoia 11,16
challenge against jurisdiction rulings 2.83
interim relief 13.83 early dismissal of claims and defences 1.59, 3.26, 3.45
judicial support 1.13-1.14 3.1f 6.02, 11.01-11.54, 18.25
set-aside applications 2.99 ad hoc arbitration 11.13
tribunal powers 12.31 application 11.37-11.42
court supervision and assistance 2.52—2.80 failure of evidence 11.40
anti-suit injunctions 2.71 failure to state a claim known to the law 11.40
appointment of arbitrators 2.73 legal merit 11.41
awards authentication and arbitration requirements 11.37—11.42
agreements 2.76—2.80 burden of proof 11.36
challenges to arbitrators 2.66 decision of tribunal 11.47-11.54
confidentiality 2.68 costs 11.52-11.54
costs assessment 2.74—2.75 exceptional circumstances 11.47
enforcement of arbitration agreements 2.60—2.65 reasoned order or award 11.47-11.51
enforcement of tribunal orders and directions 2.72 discretion of tribunal 11.43-11.46
interim measures 2.69—2.70 no automatic stay of proceedings 11.46
judicial hierarchy 2.52-2.58 opportunity to be heard 11.44~11.45
subpoenas 2.67 dispositive motions 11.04, 11.13, 11.16
two-tier court system 2.55 fig 2.1 due process paranoia 11.16
Investment Arbitration Rules 3.29, 19.27—19.30
damages 13.75, 16.39 legal merit 11.20-11.29, 11.41
decision on challenge see under challenge of arbitrators in litigation 11,03-11.05
defences see early dismissal ofclaims and defences; Motion for Summary Disposition 11.11
Statement of Defence © scope 11.18—11.29
delayin proceedings 16.05 claims and defences 11.19
Deputy Registrar (SIAC) 2.77-2.78, 4.24-4.25, jurisdiction 11.20
5.23, 6.20 legal merit 11.20-11.29
derivatives arbitration 3.43 timing 11.29
disclosure
of information 5.65, 13.06, 16.18-16.19, in SIAC Rules 11.15-11.17
standard - lack of legal merit or
jurisdiction 11.30-11.35
6.43 arbitrators 1.06, 1.48, 2.69, 3.17, 3.25,
dismissal of claims and defences see early dismissal of 3.29, 3.45 3.1f, 4.10, 4.14
claims and defences ntment 8.15
dispositive motions 11.04, 11.13, 11.16 awards 14.04, 14.07, 14.17, 14.22, 14.49
dissipationof assets 13.64, 13.78-13.79 commencement of arbitration 5.21-5.22
domestic arbitration 1.59, 2.05-2.06, 2.10, 3.45 3.2f, confidentiality 16.19, 16.25
18.01-18.26 costs and fees 15.07, 15.10, 15.15, 15.51
affidavits 18.10-18.12 exclusion of liability 16.09
ArbitrationAct (2002) 2.45, 2.48 expedited proceedings 6.16, 6.40
awards 14.08 formation and challenge of tribunal 8.15, 8.33

411
 Index

emergency arbitrators (cont.) domestic arbitration 18.04

interim and emergency relief 13.02-13.03, exceptional urgency 6.01
13.06-13.07, 13.11, 13.17, 13.63, 13.66 hearings 6.27—6.30
joinder of additional parties 7.47 Investment Arbitration Rules 3.29, 19.09
relief from tribunal 13.06-13.07, 13.11 number ofarbitrators 8.11
see also relief from emergency arbitrator under SIAC Rules 6.01-6.43
interim relief agreement of the parties 6.14
emergency relief 3.17 amount in dispute 6.11-6.13
see also emergency arbitrators, interim relief appropriate circumstances 6.06—6.18
enforcement of awards 2.01, 2.60—2.65, 2.72, claim, counterclaim and set-off
2.113—2.123 amount 6.11-6.13
arbitration agreements 2.60-2.65 directing order of proceedings 6.02
ICSID award 2.123 discontinuing application 6.43
International Arbitration Act 2002 early dismissal of claims or defences 6.02
(Singapore) 2.60—2.61, 2.72, 2.113 efficiency 6.02-6.05
New York Convention award 2.117—2.120 exceptional circumstances 6.32
non-New York Convention award 2.121—2.122 exceptional urgency 6.15-6.18
reciprocal 2.121 expedition 6.02-6.05
tribunal orders and directions 2.72 general requirements 6.06-6.10
equal treatment 2.100, 9.08, 12.77 hearing 6.27—6.30
errors number of arbitrators 6.25—6.26
correction 18,21 optin requirement 6.06
misspelt or inaccurate references 5.11—5.13 preliminary meeting 6.02
evidence 9.32-9.41, 12.25 President (SIAC) 6.02, 6.13, 6.15, 6.18-6.23,
failure of 11.40 6.25-6.26, 6.39-6.41, 6.43
fresh evidence admission 2.99 prevailing over contrary prior
preservation of 13.06, 13.68, 13.71 agreement 6.38—6.42
relevance, materiality and admissibility 9.16-9.17 reasoned decisions 6.33—6.35
wilful destruction or withholding 2.102, 13.64 requests 6.03 6.1t
ex aequo et bono 2.21, 12.75-12.76, 12.78-12.79 speed of proceedings 6.31-6.32
ex parte application 13.10—13.11 time limits 6.24
exceptional circumstances experts 9.123-9.132
ad hoc arbitration 17.35 battle of the experts 9.123
appointment of arbitrators 8.14, 8.21 costs and fees 15.25
challenge against jurisdiction rulings 2.83 multiple experts 9.128
conduct of proceedings 9.28 party autonomy 9.125—9.127
costs and fees 15.50, 15.55, 15.60 party's obligation to support 9.129
early dismissal of claims and defences 11.47 procedural fairness 9.130
expedited proceedings 6.32 questioning 9.131-9.132
interim relief 13.65, 13.70
see also expedited proceedings fair, expeditious and economical resolution 2.100
exceptional urgency 3.17, 3.25, 6.01, 6.15-6.18 appointment of arbitrators 8.19
see also expedited proceedings conduct of proceedings 9.03, 9.06-9.14, 9.24, 9.32
exclusion of liability 16.02-16.10 consolidation 7.73
administrative (tribunal) secretaries 8.22 fees see costs and fees
Arbitration Act 2002 (Singapore) 16.04-16.05, 16.08 finality of decisions of President, Court and
awards 14,22 Registrar 3.20, 9.15, 16.40-16.47
delay in proceedings 16.05 conclusive and binding nature 16.41-16.45
International Arbitration Act 2002 lex arbitri provisions 16.43
(Singapore) 16,04-16.06, 16.08 prima facie basis 16.42
mistakes 16.04 waiver or right to challenge decisions 16.46—16.47
public policy 16.03 financial management 17.21, 17.37
scope of immunity 16.08 formation of tribunal 3.45 3.1f 8.01-8.48,
SIAC officers 16.07, 16.09-16.10 8.89-8.107
SIAC Rules 3.17, 16.02, 16.07-16.08 appointment of arbitrators see appointment of
UNCITRAL Model Law (1985) 16.04 arbitrators
wilful misconduct 16.05 challenge of arbitrators see challenge of arbitrators
expedited proceedings 1.48, 3.25, 3.45 3.1, decision on challenge see decision on challenge
6.01-6.43 expedited procee see expedit
din ed proceed
gs ings

412
 Index

multi-party appointment see multi-party public policy 2.107, 2.112

appointment of arbitrators Registrar 2.74
notice of challenge see Notice of Challenge set-aside applications 2.90—2.91, 2.97-2.98
number of arbitrators see number of arbitrators subpoenas 2.67
qualifications of arbitrators see qualifications of tribunal powers 12.40
arbitrators witnesses 9.119
replacement ofarbitrator see replacement of history of arbitration 2.02—2.06
arbitrator Hong Kong International Arbitration Centre
fraud or corruption 2.41, 2.101—2.104, 2.120, 8.14, (HKIAC) 6.05—6.06, 13.07
13.76, 14.46 cost comparisons 15.01, 15.28-15.29 15.17
frivolous claim 18.22 hybrid arbitration 1.17, 5.09, 17.21

government support |.03—1.11 immunity from prosecution 2.39, 16.08

adaptation 1.06 impartiality and independence 3.25, 3.45 3.1f 5.65,
establishment of SIAC 1.09 8.36, 13.39-13.43
facilities 1.10 administrative (tribunal) secretaries 8.24
foreign law practice 1.07 appointment ofarbitrators 8.14, 8.16, 8.19, 8.24
international arbitration norms 1.04-1.05 justifiable doubts 8.61, 8.73, 8.79-8.81, 8.110
proactive support 1.03 natural justice rules, breach of 2.100
tax incentives 1.08 qualifications of arbitrators 8.49, 8.52, 8.54-8.60,
teaching facilities 1.11 8.70, 8.74, 8.82
third party funding 1.06 implied choice of law 12.66—12.67
Green List 8.68 implied duty 16.13-16.14
independence see impartiality and independence
hearings 3.25, 9.96-9.106 injunctions 13.04, 16.39
date, time and place 9.99-9.101 anti-suit injunction 2.71, 13.06
expedited proceedings 6.27-6.30 freezing injunction 12.15—-12.18, 13.06,
opportunity to be heard 9.100 13.78-13.79, 13.83
oral hearings 18.14 Mareva injunction 13.78, 13.83
privacy and confidentiality 9.105—9.106 inquisitorial approach 3.17, 9.24—9.26, 12.09-12.11
reasonable notice 9.100 interest 2.43, 14.36-14.38
repetition of in event of replacement of an interim relief 3.45 3.1f 5.22, 13.01-13.84
arbitrator 8.122-8.126 Arbitration Act 2002 (Singapore) 2.49
sufficient cause for non-attendance 9.102-9.104 court supervision and assistance 2.69—2.70
High Court of Singapore 1.06, 2.54—2.58 for foreign arbitrations 2.43
anti-suit injunctions 2.71 orders or directions 2.37
applicable law 12.67 relief from court 13.64-13.84
appointment of arbitrators 2.73 balance of convenience 13.75-13.76
Arbitration Act (2002) 2.49 commercial morality, lack of 13.78
awards 14.07, 14.46, 14.48 damages 13.75
challenge against jurisdiction rulings 2.82—2.83 destruction of evidence 13.64
challenges to arbitrators 2.66 dissipation of assets 13.64, 13.78-13.79
confidentiality 16.17 ex parte relief 13.64, 13.72
decision on challenge 8.114 exceptional circumstances 13.65, 13.70
domestic arbitration 18.04 forms of relief 13.77-13.82
early dismissal 11.51 fraud or unconscionability 13.76
emergency relief 13.24, 13.59 freezing injunction 13.78-13.79, 13.83
enforcement 2.72, 2.113-2.114, 2.119, 2.122 High Court of Singapore see High Court of
expedited proceedings 6.35 Singapore
fees and deposits 15.43 Mareva injunction 13.78, 13.83
finality of decisions 16.43 performance bond 13.76
fraud orcorruption 2.102-2.104 posting of security 13.83
ICSID Convention 2.51 preserving evidence orassets 13.68, 13.71
interim relief 2.69-2.70, 13.07, 13.15, 13.68-13.69, prior to constitution of tribunal 13.65-13.69
13.72-13.73, 13.75-13.78, 13.81-13.83 SIAC Rules compatibility 13.64-13.65
sovereign immunity 13.84
third parties 13.64, 13.72
tribunal already constituted 13.70-13.74
urgent matters 13.68, 13.71-13.72

413
 Index

interim relief (cont) Board of Directors 4.07

relief from emergency arbitrator 13.17-13.63 challenge against jurisdiction rulings 2.82, 2.85
appointment 13,.34-13.37 conduct ofproceedings 9.26
binding and enforceable decision 13.59 confidentiality 16.16-16.17
costs of application 13.60-13.61 costs assessment 2.74
criteria 13.30, 13.49-13.51 early dismissal 11.50-11.51
decision subject to review and modification by enforcement 2.60-2.61, 2.72, 2.113
tribunal 13.56-13.57 exclusion ofliability 16.04—16.06, 16.08
‘deemed necessary’ 13.49-13.50 fraud or corruption 2.101
disqualification from acting as arbitrator in same interim relief 2.69—2.70, 13.12, 13.15
dispute 13.44-13.45 judicial support 1.14
filing fee and deposit on costs 13.31-13.33 jurisdiction 10.08, 10.18, 10.39
impartiality and independence 13.39-13.43 mandatory law 5.18
interim order 13.21 natural justice rules, breach of 2.100
Notice of Arbitration 13.25-13.26 and New York Convention 2.04, 2.07,
notice requirements 13.26-13.29 2.13-2.16, 2.28
order or award 13.54 Notice of Arbitration 5.51
overview 13.17—-13.25 public policy 2.106
parties waive right of appeal, review or qualifications of arbitrators 8.59
recourse 13.59 scope 2.08-2.12
posting of security 13.58 Secretariat 4.23
powers 13.47-13.48 set-aside applications 2.86—2.89, 2.93, 2.95, 14.56
preliminary orders 13.52 tribunal powers 12.37, 12.40, 12.42
procedural schedule 13.46 and UNICTRAL Model Law (1985) 2.04, 2.07,
reasoned decision in summary form 13.53 2.10, 2.12, 2.17-2.42
seat of emergency interim relief 13.38 witnesses 9.111
security 13.30 International Bar Association (IBA) Guidelines
SIAC Rules 13.62-13.63 (2014) 8.64-8.66, 8.76
time limits for decision 13.55 International Centre for Settlement of Investment
types of emergency relief 13.30 Disputes (ICSID) Rules/Convention 1.46,
relief from tribunal 13.03-13.16 2.06, 2.50-2.51, 2.123
anti-suit injunction 13.06 early dismissal 11.17, 11.22, 11.28, 11.31, 11.35
bank guarantee, preservation of 13.06 and Investment Arbitration Rules 3.27,
confidential information, protection of 13.06 3.30-3.32, 19.04, 19.11, 19.15,
criteria to be considered when granting 13.07 19.19-19.20, 19.24
disclosure of financial records 13.06 International Chamber of Commerce (ICC) 3.14
disposal of property 13.05 ad hoc arbitration 17.12-17.13
documents, preservation of 13.06 costs comparison 15.01, 15.28-15.29 15.1¢
emergency arbitrators 13.06-13.07, 13.11 Court 1.15, 8.21
evidence, preservation of 13.06 expedited proceedings 6.05-6.06
ex parte application 13.10-13.11 judicial support 1.15-1.17
forms of 13.04-13.06 jurisdiction 10.02
freezing injunctions 13.06 notice of challenge 8.90
injunctions 13.04 number of arbitrators 8.06
interim payments 13.06 Rules 1.15, 13.32
order or award 13.12-13.16 ad hoc arbitration 17,22
posting of security 13.08-13.09 awards 14.14
property, preservation of 13.05 emergency relief 13.23
release of ship 13.06 interim relief 13.70
request for relief 13.03 party costs 15.68
sale of shares 13.06 interpretation of agreements 10.01
sale of shipment 13.06 see also scope of application and interpretation
third-party 13.64, 13.72 under commencement of arbitration.
International Arbitration Act 2002 (Singapore) 1.04, Investment Arbitration Rules 1.41-1.42, 1.53—1.54,
2.07-2.45, 2.48, 3.33, 18.02 1.59, 3.27-3.32, 19.01-19.38
amendments 2.43-—2.44 amicus curiae submissions 3.29
amiable compositeur 12.76 challenge of arbitrators 19.20
authentication 2.77 confidentiality and transparency 3.29, 19.31,
awards 14.19, 14.37 19.35-19.38

414
 Index

consolidation 3.29 substantial compliance with requirements 7.32—7.33

constitution of tribunal 3.29, 19.16-19.20 waiver of right to nominate arbitrator 7.54—7.57
costs 3.30 joint
and several liability 15.41—15.42
early dismissal ofclaims and defences 3.29, judicial hierarchy 2.52—2.58
19.27-19.30 judicial support 1.12—1.20, 2.70
emergency arbitrators 3.29 Court of Appeal 1.13—1.16
expedited procedure 3.29, 19.09 High Court 1.15
fees 3.30—3.32 hybrid arbitration clauses 1.17
inadmissibility of claim or defence 19.28-19.29 number of arbitrators 1.18
joinder 3.29 specialist judges 1.20
jurisdiction 19.28-19.29 jurisdiction see wibunal jurisdiction
key provisions 19.13-19.38 justifiable doubts 8.51—8.69
legal merit 19.28 challenge ofarbitrators 8.87—8.89, 8.110
list procedure 3.29, 19.19 Green List 8.68
multiple contracts 3.29 impartiality and independence 8.61, 8.73,
Non-disputing Contracting Party/Non-disputing 8.79-8.89, 8.110
Party 19.31-19.33 Orange List 8.67
Notice of Arbitration 5.54—5.55 qualifications of arbitrators 8.51-8.69, 8.73-8.74,
privacy 3.29 8.79-8.89
public interest 3.29, 19.31 Red List 8.66
public policy 19.31
publication 19.10, 19.37-19.38 Ladd v Marshalltest 2.99
qualifications of arbitrator 19.19 language of arbitration 5.67, 8.49, 9.83—-9.88
scope of application 19.13-19.15 Law Reform Committee (1993) 2.05, 2.34, 2.36,
significant interest 19.34 2.39, 2.74, 12.76-12.78, 16.05
sole arbitrator 3.29, 19.17-19.19 legal and equitable rights 10.47
third-party funding 3.29, 19.21-19.26 legal merit 11.20-11.29, 11.41, 19.28
third-party intervention 19.31-19.35 legislative framework for arbitration 2.02-2.51
third-party submissions 19.09-19.10 Arbitration Act 2002 (Singapore) 2.45-2.49
three arbitrators 3.29 amendments 2.49
time limits 3.29, 19.08, 19.11-19.12, 19.30 scope 2.45-2.46
transparency 3.29 terms 2.47-2.48
written submissions 19.31, 19.33 history of arbitration 2.02—2.06
investment treaty arbitration 1.35, 1.40—1.46, 3.20, International Arbitration Act 2002
5.55y17.33 (Singapore) 2.07—2.44
free trade agreements 1.41 amendments 2.43-2.44
ICSID 1.46 and New York Convention 2.13—2.16
Permanent Court ofArbitration 1.45-1.46 scope 2.08-2.12
Singapore's investment treaties 1.41 and UNCITRAL Model Law (1985) 2,17-—2.22
and UNCITRAL Model Law (1985)
joinder and additional parties 1.59, 3.25, 3.29, modifications 2,23-2.42
7.18-7.58 International Centre for Settlement of
application by parties and non-parties 7.20 Investment Disputes (ICSID)
applications made after tribunal Convention 2,.50-2.51
constituted 7.48-7.50 lex arbitri 9.70, 12.50-12.52, 16.11
confidentiality 16.33 lex causae 12.50, 15.52
consent 7.26—7.27 lex mercatoria 12.59, 12.77
contents of application 7.28-7.31 liaison officers 1.56
Court's decision on application 7.34—7.36 list procedure 3.29, 5.64, 17.35, 19.19
date of receipt 7.39, 7.53 London Court of International Arbitration
decision made byCourt orTribunal 7.37-7.38 (LCIA)/Rules 3.08, 3.14
filing ofapplications 7.21 awards 14.14
fee 7.58
filing costs and fees 15.17, 15.53
groun for application
ds 7.23-7.27 decisionon challenge 8.113
joinder asclaimant orrespondent 7.22 tribunal powers 12.02
jurisdiction 7.37
opportuto beheard 7.52
nity mainteand champerty 19.22
nance
revocation of appointment of management structure of SIAC 3.19
arbitrator 7.40-7.46, 7.55 mandatory rules oflaw 5.16-5.20, 12.04

415
 Index

Maxwell Chambers 1.10, 1.46, 2.77, 9.101, rules of law 5.66

17.23;'17.26 statement on agreed or proposed
Mediation-Arbitration procedure 1.55, 2.40, procedures 5.59-5.60
3.39-3.42 Statement of Claim, notice of arbitration treated
Memorandum of Agreement 1.57 as 5.69-5.70
Memorandum ofIssues 3.14, 3.17, 9.23 expedited proceedings 6.07
Memorandum of Understanding 1.57, 4.29 fees and deposits 15.34
minimal curial intervention principle 2.83 general provisions 16.54
mistake 12.05—12.07 interim relief 13.25-13.26, 13.66
Motion for Summary Disposition 11.11 joinder and additional parties 7.28, 7.33,
multi-party appointment of arbitrators 8.45—-8.48 7.39, 7.58
sole arbitrator 8.45—8.46 multi-party appointment 8.46
three arbitrators 8.47—8.48 response to notice see Response to Notice of
time limits 8.46 Arbitration
multi-party arbitration 3.17, 3.26, 7.02-7.05, 17.35 seat of arbitration 9.79
see also multi-party appointment of arbitrators Secretariat 4.21, 4.26
multi-tier dispute resolution clauses 10.11, SIAC Rules 3.17, 3.25
10.30-10.31 sole arbitrators 8.30
multiple contracts 1.59, 2.29, 3.26, 7.02-7.17 statement of claim see Statement of Claim
filing fee 7.15—7.17 submissions 9.45, 9.47
Notice of Arbitration 7.06-7.17 three arbitrators 8.40
see also notice and calculation of periods of
natural justice, breach of 2.41, 2.100, time under commencement
2.120, 14.46 of arbitration
New York Convention 1.05—1.06, 2.04, 2.07, Notice of Challenge 8.79, 8.89-8.107
2.13-2.16, 2.28 challenge fee 8.97-8.98
authentication 2.76—2.77 formation of tribunal 8.89-8.107
award enforcement 2.117—2.120 procedural requirements 8.958.100
costs and fees 15.15 procedure for replacement of arbitrator challenged by
early dismissal 11.49-11.50 aparty 8.106-8.107
enforcement 2.72 relief from emergency arbitrator 13.26-13.29
general provisions 16.54 removal of arbitrator by agreement of the
and International Arbitration Act 2002 parties 8.105
(Singapore) 2.13-2.16 tactical considerations 8.94
notice and calculation of periods of time 5.33 time limits 8.92-8.93
public policy 2.106 voluntary withdrawal of arbitrator 8.101-8.104
seat of arbitration 9.73, 9.78 number of arbitrators 6.25—6.26, 8.02-8.11
Secretariat 4.23 five arbitrators 8.06
no automatic stay of proceedings 11.46 four arbitrators 8.06
no memorandum of issues 3.17 two arbitrators 8.06
nomination of arbitrator 5.62—5.65, 5.87—5.90, 8.34 see also sole arbitrator; three arbitrators
non-arbitrable dispute 14.46
non-national law 12.59-12.60 objections, determination of see under tribunal
non-New York Convention award jurisdiction
enforcement 2.121—2.122 opportunityto be heard 2.100, 7.52, 7.86~7.87,
Notice of Arbitration 3.20, 3.25-3.26, 5.45—5.75 9.100, 11.44-11.45
Arb-Med-Arb protocol 3.40 opt in requirement 6.06
commencement of arbitration 5.45—5.75 oral hearing 18.14
arbitration agreement 5.49-5.53 Orange List 8.67
contact details of parties and representatives 5.48 organizational changes 3.19, 3.21
contract or other instrument 5,.54—5.55 overseas liaison offices 4.27~4,29
copy of notice sent to respondent 5.75
demand that dispute be referred to Panel of Arbitrators (SIAC) 4.18, 8.27,.
arbitration 5.47 8.31, 13.37
filing fee 5.68 parties’ submissions see submissions
language 5.67 party autonomy 8.14, 12.56-12.60
nomination of arbitrator 5.62—5.65 party representatives 5.48, 9.89-9.95, 14.19
overview of claim 5.56—5.58 passive remedy 2.89
proposal on number of arbitrators 5,61 pathological clauses 5.07—5.15

416
 Index

pending arbitrations 7.64—7.67 qualifications of arbitrators 3.25, 8.49-8.86

perjury 2.102 appointment ofarbitrators 8.14, 8.16
Permanent Court of Arbitration 1.46, 17.26, 19.04 arbitrator shall not act as advocate for any party 8.53
Secretary-General: SLAC communications with potential
selection 17.23-17.27, 17.31 arbitrators 8.82—8.86
place of incorporation 5.14 competence 8.49
pleadings 3.11, 3.29, 16.35-16.36 duty ofdisclosure 8.74-8.81
conduct of proceedings 9.35—9.36, 9.41-9.43, factors taken into account by SIAC
9.46, 9.106 President 8.70—8.73
expedited proceedings 6.24 impartiality and independence 8.49, 8.52,
tribunal powers 12.48 8.54-8.60, 8.70, 8.74, 8.82
posting ofsecurity 13.08—13.09, 13.58 impartiality and independence, justifiable
Practice Notes 3.12, 4.12, 4.22, 5.47 doubts 8.61, 8.73, 8.79-8.81
ad hoc tribunals 17.36 integrity 8.49
appointment ofarbitrators 8.18, 8.22, 8.25, 8.32 Investment Arbitration Rules 19.19
confidentiality 16.38 justifiable doubts 8.51-8.69, 8.73-8.74, 8.79-8.81
preliminary meeting 3.17, 6.02, 9.18-9.22 language of arbitration 8.49
President (SIAC) 1.58 nationality different from the parties 8.59-8.60
ad hoc arbitration 17.17, 17.25, 17.35 promptness and efficiency 8.72
appointment of arbitrators 2.73, 8.12-8.17 time limits 8.73
awards 14.30
and Board of Directors 4.08 reasoned decisions 6.33-6.35, 8.113, 13.53
conduct of proceedings 9.14 reciprocity 2.16, 2.117
and Court (SIAC) 4.10, 4.18 Red List 8.66
decision on challenge 8.109 redacted awards 3.20
definition 5.23 regional trade and investment 1.32
emergency relief 13.18, 13.21, 13.33-13.37, 13.40, Registrar (SIAC) 1.58, 3.11-3.12
13.42-13.43, 13.48 ad hoc tribunals 17.36-17.37
expedited proceedings 6.02, 6.13, 6.15, 6.18-6.23, additional awards 14.65, 14.67-14.68
6.25-6.26, 6.39-6.41, 6.43 appointment of arbitrators 8.18, 8.20
finality of decisions 16.40-16.47 Arbitration Act 2002 (Singapore) 2.48
general provisions 16.54 Arb-Med-Arb protocol 3.40-3.41
Mediation-Arbitration procedure 2.40 Assistant Registrar 2.58
multi-party appointment 8.45, 8.47-8.48 authentication 2.77—2.78
Notice of Arbitration 5.59, 5.62, 5.64, 5.66 awards 14.14, 14.16-14.21, 14.34-14.35, 14.41
number of arbitrators 8.11 challenge of arbitrators 8.87
qualifications of arbitrators 8.70-8.73 consolidation 7.62, 7.71, 7.76
replacement of an arbitrator 8.116 correction of award 14.58-14.59, 14.62-14.63
Response to Notice of Arbitration 5.85 costs and fees 2.74, 15.13, 15.15, 15.16, 15.21, 15.29
and Secretariat (SIAC) 4.21 and Court (SIAC) 4.10, 4.17
SIAC Rules 3.17, 3.21, 3.24 defined terms 5.23
sole arbitrators 8.28, 8.30-8.33 domestic arbitration 3.34, 18.04, 18.21
three arbitrators 8.38, 8.41, 8.44 emergency relief 13.21, 13.25, 13.27, 13.31-13.32,
transfer of statutory power from SIAC 13.39-13.40, 13.55, 13.63
Chairman 2.43 expedited proceedings 6.02, 6.06, 6.08, 6.19-6.20,
see also finality of decisions of President, Court and 6.24, 6.43
Registrar fees, deposits and expenses 15.30, 15.32-15.34,
presumptively
valid agreement 2.65 15.37-15.38, 15.40, 15.43-15.49,
privilege 1.46, 12.53-12.54 15.55-15.57, 15.60-15.62
procedural issues 9.19, 9.27-9.29 finality of decisions 16.40-16.47
public interest 3.29, 19.31 general provisions 16.54
interpretation of award 14.71, 14.73-14.74
Investment Arbitration Rules 19.12, 19.20
joinder and additional parties 7.21, 7.32-7.33
judicial support 1.15
jurisdiction 10.09
tribunal powers 12.10 multi-party appointment 8.46
on ofawards 14.50~14.54,
16.38, 19.10, Notice of Arbitration 5.45, 5.58, 5.64, 5.68,
19.37-19.38 5.70-5.72

417
 Index

Registrar (SIAC) (cont.) Notice of Arbitration 5.58, 5.68

number ofarbitrators 8.08—8.10 Notice of Challenge 8.97
party costs 15.67 Response to Notice of Arbitration 5.91
Response to Notice of Arbitration 5.77, 5.91, SIAC Rules 3.13, 3.17
5.94-5.95 scope of application see under commencement of
role 4.20-4.23 arbitration
Senior Assistant Registrars 2.58 scope of arbitration agreement 10.21—10.23
SIAC Rules 3.17, 3.20, 3.25 scope of duty 16.35—16.37
sole arbitrator 8.30 scrutiny of awards 3.17, 14.14—14.21, 17.37
time limits 14.75 seat of arbitration 3.17, 3.25, 9.69-9.82
see also finality of decisions of President, Court and hearings and meetings 9.80—9.82
Registrar lex arbitri 9.70
replacement of arbitrator 8.116-8.121 Notice of Arbitration 9.79
challenged bya party 8.106—8.107 party autonomy 9.70—9.79
death 8.116 selection in absence of agreement of the
failure to perform functions 8.118-8.119 parties 9.75-9.79
removal 8.116 Secretariat (SIAC) 3.07, 3.09, 3.11, 4.20-4.26
by agreement of the parties 8.105 ad hoc tribunals 17.22, 17.35, 17.37
by SIAC Court 8.111-8.112 additional awards 14.65
by SIAC President 8.120-8.121 associate counsel 4.25—4.26
repetition of hearings 8.122-8.126 awards 14.14-14.15, 14.29, 14.35, 14.51
resignation 8.116 Case Management Officers (CMOs) 4.25-4.26
truncated tribunals 8.126 conduct of proceedings 9.21
withdrawal 8.116 confidentiality 16.23
representation sce party representatives costs and fees 15.09-15.27, 15.51-15.54, 15.30,
res judicata doctrine 14,43 15.32-15.33
Response to Notice of Arbitration 5.71, 5.74, counsel 4.25-4.26
5.76-5.95, 9.47 and Court (SIAC) 4.10, 4.14
ad hoc arbitration 17.31 decision on challenge 8.113
Arb-Med-Atb protocol 3.40 domestic arbitration 3.34
claimant's proposals on procedure, response expedited proceedings 6.34
to 5.85-5.86 interim relief 13.66
counterclaims 5.83—5.84 Investment Arbitration Rules 3.28
expedited proceedings 6.07 judicial support 1.15
filing fee for counterclaim 5.91-5.92 Notice of Arbitration 5.45, 5.58, 5.73
Investment Arbitration Rules 3.29, 19.08 Notice of Challenge 8.91
joinder and additional parties 7.58 overseas liaison officers 4.27
nomination of arbitrator 5.87-5.90 qualifications of arbitrators 8.75
required within 14 days 5.77—5.79 SIAC Rules 3.17, 3.24
response to claims 5.80—5.82 sole arbitrators 8.33
serving a copy of response on claimant 5.95 tribunal powers 12.23
Statement of Counterclaim 5.93-5,94 UNCITRAL Model Law (1985) 2.34
Statement of Defence 5,93-5.94 security provision 18.18—18.19
reversed applications 2,83 separability principles 2.18, 10.01, 10.11,
revocation 7.40-7.47, 7.55, 7.77-7.80, 7.88-7.89 10.19-10.20, 12.64, 12.71-12.74
right to be heard 2.100, 8.124 service of documents 5.26, 5.29
conduct of proceedings 9.08, 9.11, 9.14, 9.17, set-aside applications 2.41, 2.86—2.89,
9.97, 9.109 2.93, 2.95
Rules Revision Executive Committee 3.24, 3.28, 4.11 Arbitration Act 2002 (Singapore) 2.90-2.91
awards 14.23, 14.46, 14.48
Schedule of Fees 3.25 challenge against jurisdiction rulings 2.83
ad hoc arbitration 17,21, 17.37 challenge of awards 2.92-2.99
appointment of arbitrators 8.20-8,21 enforcement 2.120 .
Arb-Med-Arb protocol 3.40 International Arbitration Act 2002
costs, fees, deposits and expenses 15.07, 15.18, (Singapore) 2.86~2.89
15,20-15.21, 15.29-15,30, 15.32-15,33, public policy 2.107—2.108
15.46, 15.50, 15.55-15.56, 15.60 Singapore award 2.86-2.91
expedited proceedings 6.37 and Singapore courts, attitude of 2.92-2,99
Investment Arbitration Rules 3.30 suspension 14.56

418
 Index

set-off defences 10.01, 10.41-10.48 mandatory preliminary meeting 3.17

counterclaim 10.41—-10.42 multi-party cases 3.17
fairness or justice 10.47 no memorandum of issues 3.17
legal and equitable rights 10.47 scrutiny of awards 3.17
tribunal jurisdiction 10.41-10.48 seat of arbitration 3.17
SIAC Court 1.58, 3.07, 4.09-4.18 time limits 3.17
ad hoc tribunals 17.35 2013 1.59, 3.17—3.22, 3.25
Board of Directors 4.06 advance on costs 3.20
challenge of arbitrators 2.66, 8.87 binding decisions of President, Court and
confidentiality 16.23 Registrar 3.20
consolidation 7.63, 7.72—7.73, 7.77-7.81, Board of Directors 4.06
7 .87-7.88 Court (SIAC) 4.09
costs 15.09 domestic arbitration 3.35, 18.01, 18.05, 18.07—
creation of 2.43 18.08, 18.14, 18.23, 18.25-18.26
decision on challenge 8.108, 8.113—8.115 investment treaty cases 3.20
emergency relief 13.40 jurisdiction review 3.20
expedited proceedings 6.02 Notice of Arbitration 3.20
finality of decisions 16.40—16.47 organizational changes 3.19, 3.21
functions 4.10—4.11 post-award interest 3.20
general provisions 16.54 redacted awards 3.20
Investment Arbitration Rules 3.29 tribunal powers 3.20
joinder and additional parties 7.19, 7.21, 7.34-7.38, 2016 1.18, 1.53, 1.59, 3.20, 3.23-3.26, 3.45
7 42-7.43, 7.45, 7.49, 7.52, 7.55 ad hoc arbitration 3.45 3.2f
jurisdiction 10.01, 10.03, 10.06—10.10 additional provisions and services 3.45 3,.2f
multiple contracts 7.11, 7.17 administration fees 3.25
notice of challenge 8.99 arbitrators 3.25
President's role 4.13—4.17, 5.23, 5.25 award 3.45 3.1f
replacement of arbitrator 8.116 challenges to arbitrators 2.66
Secretariat 4.21 commencement of arbitration 3.25, 3.45 3.1f
SIAC Rules 3.17, 3.19-3.20, 3.24, 5.25 confidentiality 3.25
sole arbitrators 8.33 costs 3.25
see also finality of decisions of President, Court and Court (SIAC) 4.11
Registrar domestic arbitration 3.35, 3.45 3.2f 18.01, 18.06,
SIAC Model Clause 5.04, 12.65 18.23, 18.24-18.26
SIAC Rules 2.12, 3.01, 9.05, 16.52-16.56 early dismissal of claims and defences 3.26,
1991 2.35, 3.09, 3.11, 4.14 3.45 3.1f
1997 2.35, 3.10-3.11, 4.14 emergency arbitrators 3.25, 3.45 3.1f
2002 18.01 exceptional urgency 3.25
2007 1.48, 3.11-3.15, 3.17, 3.20, 3.34-3.35, expedited procedure 3.25, 3.45 3.1f
4.10, 4.14 fees 3.25
domestic arbitration 18.01, 18.05, 18.07—18.08, formation of tribunal 3.45 3.1f
18.14, 18.23, 18.25 . hearings 3.25
2010 1.20, 1.59, 3.16-3.17, 3.20, 3.25, 4.10, 4.14 impartiality and independence 3.25, 3.45 3.1f
additional awards 3.17 interim relief 3.45 3.1f
appointment of arbitrator 3.17 and Investment Arbitration Rules 3.29
arbitrators fees 3.17 joinder and additional parties 3.25
jurisdiction 3.45 3.1f
multiple arbitrations, consolidation of 3.26
multiple contracts 3.26
Notice
of Arbitration 3.25, 3.26

costs 3,17
domestic arbitration 3.17, 3.35, 18.01, 18.05,
18.07-18.08, 18.14, 18.23, 18.25
~ stages
ofarbitration 3.44, 3.45 3f
written submissions 3.25
7M, 17.34
Arb-Med-Arb protocol 3.41
challenge against jurisdiction
rulings 2.85

419
 Index

SIAC Rules (cont.) Rules see SLAC Rules

confidentiality see confidentiality Secretariat see Secretariat (SIAC)
Court (SIAC) 4.10 Singapore International Mediation Centre 1.55,
early dismissal of claims and defences 11.15—11.17 3.40-3.41
enforceability 16.52, 16.54 Singapore Rules of Court 5.34
exclusion ofliability 16.02, 16.07-16.08 sole arbitrator 1.18, 8.03, 8.07-8.11, 8.26-8.33
expedited proceedings see expedited proceedings ad hoc arbitration 17.11, 17.35
fair, expeditious and economical competence 8.32
resolution 16,52-16.53, 16.56 costs and fees 15.07, 15.29 15.14, 15.33
government and legislative support 1.06 Court (SIAC) 4.10
impartiality and independence 16.54 default procedure for nomination and
interim relief 13.62—13.65 appointment 8.29-8.33
natural justice rules, breach of 2.100, 16.54 emergency arbitrator 8.33
non-English versions 16,57 exceptional circumstances 8.33
reasoned decisions 16.54 expedited proceedings 6.25, 6.39
relief from emergency arbitrator 13.62—13.63 formation of tribunal 8.26—8.33
Secretariat (SIAC) 4.22—4.24 impartiality and independence 8.32
set-aside applications 2.91 integrity 8.32
valid arbitration agreement 16.54 Investment Arbitration Rules 3.29, 19.17-19.19
Singapore list procedure 8.27
ad hoc arbitration 17.17-17.19 Notice of Arbitration 5.61—5.63
broadband penetrations 1.31 parties’ right to nominate jointly 8.27-8.28
challenge of awards see challenge of awards reserve list 8.31
court supervision see court supervision and Response to Notice of Arbitration 5.90
assistance Secretariat (SIAC) 4.21
enforcement of awards see enforcement of awards UNCITRAL Model Law (1985) 2.42
global centre for arbitration sovereign immunity 13.84
advantages 1.02, 1.05, 1.24-1.31 specialist commercial lists 2.56
conduct of investment treaty specialist judges 1.20
arbitrations 1.40-1.46 State Courts 2.52, 2.54
crime rates, low 1.26 State and State entities 17.33
cultural and legal links to Asian Statement of Case 9.36
neighbours 1.34—1.39 Statement of Claim 9.35-9.48, 9.52
English language 1.24, 1.27-1.28 failure to submit 9.65—9.66, 12.46
facilities 1.02, 1.10 Notice of Arbitration 5.56, 5.69-5.70
geographical position 1.24—1.25 Response to Notice of Arbitration 5.94
government and legislative support 1.03-1.11 Statement of Counterclaim 5.92-5.94
judicial support 1.12-1.20 Statement of Defence 5.93-5.94, 9.47-9.53,
neutrality, reputation for 1.21 9.60, 10.32
political stability 1.26 to Counterclaim 9.54, 10.32
popularity 1.01-1.02 failure to submit 9.67—9.68
regional growth 1.32-1.33 Response to Notice of Arbitration 5.82, 5.92
stable and predictable laws 1.22-1.23 Statement of Rejoinder 9.60
tax incentives 1.08, 1.24, 1.29-1.30 Statement of Reply 9.60
technological advances 1.24, 1.31 statutory power and responsibility 2.42, 17.18
legislative framework see legislative framework for stay of proceedings 2.62—2.64, 2.83
arbitration Stockholm Chamber of Commerce (SCC) 11.12,
Ministry of Trade and Industry 3.03 19.04, 19.06, 19.19
Singapore International Arbitration Centre (SIAC) submissions 9.33-9.68, 17.06
Board of Directors see Board of Directors (SIAC) ad hoc arbitration 17.06
caseload 1.48 Fig 1.1 additional submissions 9.60-9.63
Chief Executive Officer (CEO) 4.19 amendments to 9.55-9.59
corporate and management structure 3.04—3.07 closing submissions 15.06 :
costs and fees 15.10-15,27, 15.51-15.54 counterclaim 9.54
Court see SIAC Court Investment Arbitration Rules 3.29
domestic arbitration see domestic arbitration Notice of Arbitration 9.45, 9.47
establishment 3.02-3.03 opening submissions 15.06
Executive Committee 4.18 pleadings 9.35~9.36
officers 16.07, 16.09-16.10 Response to the Notice of Arbitration 9.47

420
 Index

Statement of Case 9.36 determination of objections 10.32—10.37

Statement of Claim see Statement of Claim early dismissal of claims and defences 11.29
Statement of Defence see Statement of Defence expedited proceedings 6.24
Statement of Rejoinder 9.60 interim relief 13.55
Statement of Reply 9.60 Investment Arbitration Rules 3.29, 19.08,
supporting documents 9.64 19.11-19.12, 19.30
third-party 19.09-19.10 Notice of Challenge 8.92-8.93
tribunal’s power to set procedure 9.34 qualifications of arbitrators 8.73
witness evidence 9.39—9.41 three arbitrators 8.39-8.40, 8.43-8.44
written submissions (memorials) 3.25, 9.37, 9.63, tribunal powers 12.08
19.31, 19.33 see also notice and calculation of periods of time under
subpoenas 2.67 commencement of arbitration
substance of dispute 14.02—14.04 transnational law 12.59—12.60
substitute arbitrator 17.35 transparency 3.29, 17.32, 19.31, 19.35-19.38
summary awards 3.17, 11.07, 14.08 tribunal jurisdiction 3.17, 3.45 3.1f 10.01-10.48
dismissal 18.17—18.18 awards 14.46
domestic arbitration 3.34-3.36, 14.08, 18.01, 18.04, challenge of 2.82-2.85
18.06-18.22, 18.25 challenges to jurisdiction 10.02-10.10
summary judgments 15.45 arbitrability 10.11, 10.24-10.29
Supreme Court 2.52 competence-competence 10,01, 10,11—-10.18
Registrar 2.48, 2.58, 2.74 interpretation of agreements 10.01
suspension of claim 15.43 multi-tier dispute resolution clauses 10.11,
suspension ofproceedings 4.21, 8.98-8.99, 10.30-10.31
15.37, 19.20 scope of arbitration agreement 10.21-10.23
separability 10.01, 10.11, 10.19-10.20
terms of contract and trade usages 12.80—12.83 set-off defences 10.01
Terms of Reference 3.17 determination of objections 10.32-10.40
third-parties 1.06, 1.53, 8.74, 8.117, 16.24, 16.33 preliminary question or award on
costs 15.68 merits 10.38-10.40
expedited proceedings 6.17—6.18 Statement of Defence 10.32
funding 3.29, 19.21-19.26 Statement of Defence toa Counterclaim 10.32
interim and emergency relief 13.64, 13.72 timing 10.32-10.37
intervention 19.31—-19.35 early dismissal of claims and defences 11.20
submissions 19.09-19.10 Investment Arbitration Rules 19.28-19.29
three arbitrators 1.18, 8.03, 8.08-8.11, 8.34-8.44 joinder and additional parties 7.37
ad hoc arbitration 17.35 negative rulings 2.43
co-arbitrators 8.42 review 3.20
considerations 8.35 rights of challenge against rulings on 2.82—2.85
costs and fees 15.29 15.1t, 15.33, 15.59 set-aside applications 2.86
Court (SIAC) 4.10 set-off defences 10.41-10.48
default procedure 8.38-8.44 tribunal powers 12.10
expedited proceedings 6.25, 6.39 tribunal powers 3.20, 3.25, 9.34, 12.01-12.54
formation of tribunal 8.34-8.44 additional 12.02-12.54
impartiality and independence 8.36 adverse costs order 12.32
Investment Arbitration Rules 3.29 applicable law see applicable law
majority rulings 14.33 change of circumstances 12.05
nomination 8.34 common or mutual mistake 12.05, 12.07
Notice of Arbitration 5.61—5.62 contract procurement by fraud or duress 12.05
prospective presiding arbitrator 8.37 contract rectification 12.05—12.07
Response to Notice of Arbitration 5.89 determination of claims of privilege 12.53-12.54
Secretariat (SIAC) 4.21 directions to ensure effectiveness of
SIAC Rules 3,17 award 12.26-12.28
time limits 8.39-8.40, 8.43-8.44 document production 12.19-12.22
UNCITRAL Model Law (1985) 2.42 freezing injunction 12.15-12.18
arbitrator 14.28 grossly unconscionable contract 12.05
time limits 3.17 ‘guerilla tactics’ 12.43
awards 14.09-14.13, 14.16, 14.75 illegality of contract 12.10
of arbitrators 8.110
challenge inquisitorial approach 9.24~9.26, 12.09-12.11
of proceedings 9.20
conduct inspection of property or item 12.12-12.14
 Index

tribunal powers (cont.) and International Arbitration Act 2002

jurisdiction, scope of 12.10 (Singapore) 2.04, 2.07, 2.10, 2.12,
lex arbitri 12.50-12.52 2.17-2.42
lex causae 12.50, 15.52 modifications 2.23-2.42
mandatory rules of law 12.04 party autonomy 12.58
material mistake 12.05 public policy 2.106
non-compliance 12.45-12.47 rights of challenge 2.86-2.87
order or award on costs 12.23-12.24 stable and predictable laws 1.23
power to order witness evidence 12.25 urgent matters 13.68, 13.71—-13.72
prescribed powers 12.02 see also exceptional urgency
public policy violation 12.10
security for amount in dispute 12.41-12.44 Vice-President (SIAC) 4.15-4.18, 5.23, 6.20,
security for costs 12.29-12.40 8.109, 17.17
Statement of Claim, failure to submit 12.46 voie directe (direct route) method 12.61—12.62
subject to agreement of the parties 12.03
taking advantage of another's hardship 12.05 waiver
time limits 12.08 of right to nominate arbitrator 7.54—7.57,
unilateral mistake 12.06-12.07 7.90-7.92
truncated tribunal 17.35 of right to object 16.49-16.51
two-tier court system 2.55 fig 2.1 wilful misconduct 16.05
witnesses 9.107—9.122
UNCITRAL Arbitration Rules 3.08, 3.14 control of questioning 9.110
ad hoc arbitration see ad hoc arbitration evidence see evidence
and Investment Arbitration Rules 3.27, 19.04, 19.36 examination and cross-examination 9.112
UNICTRAL Model Law (1985) 1.04—-1.05, 2.04, fair, expeditious and economical resolution 9.109
2.17—2.22 inappropriate questioning 9.113
and Arbitration Act 2002 (Singapore) 2.45, 2.47 non-attendance 9.119
awards 14.46 notice of identity 9.108
Board of Directors 4.07 oaths and affirmations 9.111
challenge against jurisdiction rulings 2.83 order of appearance 9.115
challenges to arbitrators 2.66 prior hearing interviews 9.120-9.122
conduct of proceedings 9.05 refuse or limit appearance 9.109
confidentiality 2.38 timing of evidence 9.117
enforcement 2.61 video-conferencing 9.114
exclusion of liability 16.04 witness-conferencing 9.115
fraud or corruption 2.101 witness coaching 9.122
general provisions 16,54 witness statements by email or video recording 9.118
interim relief 13.07, 13.10 written statements 9.116

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