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 INDIAN JOURNAL OF ARBITRATION LAW

THE SIAC IA RULES: A NEW PLAYER IN THE INVESTMENT ARBITRATION MARKET

ChrstopherBoog & Philkp Wimalasena*

Abstract
With the entering into force of the Investment Arbitration Rules of the Singa ore InternationalArbitration
Centre (SIAC) on JanuaU 1, 2017, a new player has emerged in the investment arbitration market. Asia's
continued rise as one of the world's astest-groing and most dynamic markets, Singapore's determination to
consolidate its position as a leading hub for international dispute resolution services and SIAC's profound
arbitration expertise form the commerial, political and legal framework for SIACs Investment Arbitration
Rules. The new RIes address - and present balanced solutions to the most pressing issues facing international
investment arbitration, drang on its experences from the application of the SIAC CommerialArbitration
Rules as well as internationalbestpractice in investment arbitration.They foster efficeng, speed and transpareng
and offer a competitive cost regime. At the same time, the new Rules provide an innovative aproach to issues such
as third-partyfunding, amicus curiae submissions andfivolous claims. While it remains to be seen how many of
those prodisions ll be administered in practice and whether the Rules iill gain acceptance in the investment
arbitration community, this article posits that the new Rules offer a viable alternativefor investment arbitration
both in Asia and beyond.

I. Introduction
The first edition of the Investment Arbitration Rules of the Singapore International Arbitration
Centre [the "SIAC IA Rules"] entered into force on January 1, 2017.' This contribution
highlights the main features and innovations of the SIAC IA Rules and compares them to other
sets of rules that are being used in the field of investor-state disputes. After briefly outlining the
background and main purpose of the SIAC IA Rules (section II), the authors will examine the
scope of application of the new Rules (section III), before elaborating on the initiation of the
arbitral procedure and the appointment and challenge of arbitrators (section IV). We will then
address the conduct of the proceedings under the SIAC IA Rules, and, in particular, their
innovative approach towards third-party funding and the early dismissal of claims (section V).
Other significant innovations include the introduction of an emergency arbitrator procedure in
investor-state dispute resolution (section VI) and the admission of third-party submissions in the
proceedings (section VII). Following an analysis of the issues of confidentiality (section VIII)
and awards (section IX), the article will finally address the approach of the SIAC IA Rules with
respect to costs (section X), concluding with a brief summary and outlook on the prospects of
success of the new Rules (section XI).

II. Background and Main Purpose

The global market for commercial arbitration continues to flourish. As of date, well over a
hundred arbitral institutions compete regionally and globally for business and market shares,
including in India, for example, the Indian Council of Arbitration and the Indian Institute of

Dr. Christopher Boog FCIArb is a partner and Vice Chair of Schellenberg Wittmer's International Arbitration
Practice Group based in Singapore and Zurich. Dr. Philip Wimalasena LL.M. (Cantab.) is an associate in
Schellenberg Wittmer's International Arbitration Practice Group in Zurich. The views expressed in this article do
not necessarily represent the views of Schellenberg Wittmer Ltd or Schellenberg Wittmer Pte Ltd.
Capitalized terms not defined in this contribution derive from the definitions set out in Rule 1.5 of the Investment
Arbitration Rules of the Singapore International Arbitration Centre, 2017,
http://www.siac.org.sg/images/stories/articles/rules/IA/SIAC%/`20Investment%/`20Arbitration%/`2ORules%/`20-
%20Final.pdf [hereinafter"SIAC IA Rules"] (last accessed on Aug. 11, 2017).

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 VOLUME 6, ISSUE 1 2017

Arbitration and Mediation, or the most recent, the Mumbai Centre for International Arbitration.
By contrast, the investment arbitration market is dominated by only a handful of arbitral
institutions.

Currently, investment disputes are primarily conducted under the auspices of the International
Centre for the Settlement of Investment Disputes ["ICSID"] 2 , the Stockholm Chamber of
Commerce ["SCC"1], the International Chamber of Commerce ["ICC"], or are administered ad
hoc under the Arbitration Rules of the United Nations Commission on International Trade Law
["UNCITRAL"]; with a majority of cases being handled by ICSID, i.e. by the World Bank.

The SIAC IA Rules mark a first: they constitute the first set of dedicated investment arbitration
rules enacted by a private arbitral institution.' At the same time, the SIAC IA Rules reflect
Singapore's continued dedication to becoming a prime hub for international dispute resolution.
The SIAC, the Singapore International Mediation Centre 8 and the Singapore International
Commercial Court9 already successfully offer a wide array of dispute resolution services. Their
eminent success is a result of several factors, not the least of which is the strong political and
governmental support, as only recently demonstrated by the enactment of the Civil Law
(Amendment) Bill No. 38/2016, which makes Singapore the first state to formally regulate third-
party funding. 0

The SIAC IA Rules round off the range of services and aim to establish Singapore as a venue for
investment arbitration. They entered into force following a comprehensive public consultation
process and draw on the wealth of experience gained from the application of the SIAC
Arbitration Rules" on which they are largely modeled, as well as the best practices developed by
other investment arbitration institutions such as ICSID, SCC and the Permanent Court of
Arbitration. Moreover, they address many of the concerns that have been the focus of
discussions both within the international arbitration community and amongst the public at large,

2 Disputes are administered under the ICSID Rules of Procedure for Arbitration Proceedings as amended effective
from April 10, 2006 [hereinafter "ICSID Rules"].
3 Disputes are administered under SCC Arbitration Rules in force as of January 1, 2017, including notably Appendix
III (Investment Treaty Disputes) [hereinafter"SCC Rules"].
4 Disputes are administered under the Rules of Arbitration of the International Chamber of Commerce in force as of
March 1, 2017 [hereinafter"ICC Rules"].
5 United Nations Commission on International Trade Law Rules on Transparency in Treaty-based Investor-State
Arbitration and Arbitration Rules as revised in 2013 [hereinafter"UNCITRAL Transparency Rules"].
6 The SCC applies its regular commercial arbitration rules, supplemented by an appendix addressing the specificities

of investment arbitration.
7 SINGAPORE INTERNATIONAL ARBITRATION CENTRE (SIAC), http://www.siac.org.sg/ (last accessed on Aug. 11,
2017).
8 SINGAPORE INTERNATIONAL MEDIATION CENTRE, (SIMC), http://simc.com.sg/ (last accessed on Aug. 11, 2017).
9 SINGAPORE INTERNATIONAL COMMERCIAL COURT (SICC), http://www.sicc.gov.sg/ (last accessed on Aug. 11,
2017).
10 For a detailed discussion of legislative developments, see Christopher Boog & Julie Raneda, Third-Party Funding in
Singapore and Hong Kong: Recent Developments Towards LegakZation, SCHELLENBERG WITTMER NEWSLETTER (February
2017), http://www.swlegal.ch/Publications/Newsletter/Third-Party-Funding-in-Singapore-and-Hong-Kong-
Rec.aspx (last accessed on Aug. 11, 2017).
1 Unless otherwise stated, references to the SIAC Arbitration Rules are references to the 2016 edition of the Rules,
effective as of January 1, 2016 [hereinafter "SIAC Rules"]. For a detailed discussion of the latest edition of the SIAC
Rules, see Christopher Boog & Julie Raneda, The 2016 SL4C Rules:A State-of-the-Art Rules Retision Ensuring an even more
Efficient Process, 34(3) ASA BULLETIN, 584 § 1 (2016).

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 INDIAN JOURNAL OF ARBITRATION LAW

including delays and spiralling costs, frivolous claims, confidentiality, public interest
considerations, submissions by non-disputing parties and third-party funding arrangements.

III. Scope of the Rules

One of the most significant innovations of the SIAC IA Rules concerns their scope of
application.

The introduction to the Rules states that "[t]hese Rules may be agreed and applied in any ype of
arbitration, the application of which shall not be sub/ect to ob/ective criteria such as the existence of a qualif ing
"investor" or "investment" or the presence of a State, State-controlled entity or intergovernmental organization
... Rather, the SIAC IA Rules are applicable if the parties have agreed on their application,
."12
and regardless of whether the dispute arises out of a "contract, treay, statute or other instrument". The
parties' agreement may be formalised in writing, but may also result from implied consent to an
express stipulation in this regard. Rule 1.2 explicitly provides that a party is deemed to have
consented to the application of the SIAC IA Rules if, following an offer in writing from the
other party, it initiates arbitration proceedings.

The approach taken by the SIAC IA Rules is very different from the approach taken, for
instance, by the ICSID. Under Article 25(1) of the ICSID Convention, an ICSID tribunal may
only assume jurisdiction of disputes "arising directy out of an investment, between a Contracting State
and a national of another Contracting State". The notion of 'investment' is arguably the central
notion of ICSID investment arbitration and a major procedural obstacle for any party advancing
claims under a bilateral investment treaty which provides for ICSID arbitration. In fact, more
than a quarter of all awards currently rendered by ICSID tribunals are awards rejecting
jurisdiction due to a lack of an 'investment' in the sense of Article 25(1) of the ICSID
Convention. 3

By contrast, the scope of application of the SIAC IA Rules, which renounce the requirement for
objective notions such as 'investment' or 'investor', is significantly broader and likely to avoid
lengthy disputes on jurisdiction, which are frequent under the current ICSID regime. The only
restrictions regarding jurisdiction under the SIAC IA Rules are the substantive requirements in
the respective contract, treaty, statute or other instrument. Furthermore, by referring a dispute to
arbitration under the SIAC IA Rules, the parties waive any right to immunity from jurisdiction. 4

In sum, due to their broad scope the SIAC IA Rules are likely to avoid costly preliminary
disputes on jurisdictions, thereby contributing to more streamlined and efficient proceedings.

12 SIAC IA Rules, intro. (ii) (emphasis added).

13 In addition, it can be assumed that uncertainties regarding jurisdiction also account for a significant portion of the
ICSID cases which proceed to settlement (currently about one third of all proceedings). For further details, see
ICSID, The ICSID Caseload - Statistics, ISSUE 2017-1, 14, 15 (2017),
https://icsid.worldbank.org/en/Documents/resources/ICSID%/`20Web%/`20Stats%/o202017-
1%20(English)%20Final.pdf (last accessed on Aug. 11, 2017).
14 SIAC IA Rules, r. 1.3. Importantly, by waiving immunity from jurisdiction the Parties do not automatically waive
immunity from execution. In practice, immunity from execution is frequently invoked by State Parties and severely
limits the investor's ability to enforce investment arbitration awards (see e.g. Olga Gerlich, State Immuniy from
Execution in the Collection of Awards rendered in InternationalInvestment Arbitration: The Achiles' Heel of the Investor-State
ArbitrationSystem?, 26 (1) AM. REV. OF INT'L ARB. 47-99 (2015). It is therefore likely that costly and time-consuming
enforcement proceedings - or, as an alternative, post-award settlements - will remain the rule in investment
arbitration, including under the SIAC IA Rules.

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 VOLUME 6, ISSUE 1 2017

The SIAC's approach will be particularly relevant in comparison to the ICSID Rules. The likely
appeal of the Rules to investors may, however, be offset by reservations harboured by State
parties, for instance in relation to the right to waive immunity from jurisdiction. The current
negative bias in public opinion against investor-state arbitration, which became apparent, for
example, in the opposition to the Trans-Pacific Partnership ["TPP"] and the Trans-Atlantic
Trade and Investment Partnership ["TTIP"] and specifically to the dispute resolution
mechanisms set forth in those agreements, leaves the future of investor-state dispute settlement
unclear. In addition, the withdrawal of a growing number of States, including India, from
bilateral investment treaties, 5 and proposals for alternative investment dispute resolution models
such as the European Commission's Investment Court system' will arguably also have an impact
on the new SIAC IA Rules and their relevance in practice. It remains to be seen how SIAC - and
also other institutions such as ICSID - will deal with those more fundamental challenges in the
coming years.

IV. Appointment and Challenge of Arbitrators

The SIAC IA Rules include a detailed regime on the appointment (section IV.A) and challenge
(section IV.B) of arbitrators.

A. Appointment of Arbitrators
Under the SIAC IA Rules, the Parties may appoint any odd number of arbitrators, a three-
arbitrator tribunal being the default rule if no party agreement exists." In line with international
investment arbitration practice, a three-arbitrator tribunal is therefore likely to become the
standard in proceedings under the Rules. Interestingly, the SIAC Court of Arbitration [the
"Court"] may appoint a sole arbitrator if it considers that this is warranted by the circumstances
of the case." It remains to be seen how the Court will apply this provision, which bears
resemblance to similar - and at times controversial - provisions in other arbitration rules", in
practice. In a commercial arbitration setting, these provisions aim to improve procedural
efficiency by submitting smaller or less complex disputes to a sole arbitrator. Given the

15 In July 2016, India sent notices to 58 countries announcing its intention to terminate (or not renew) various bilateral
investment treaties, with the aim to replace them with its new 2016 Model BIT, which marks a shift from India's
previous foreign investment policy. For further background on the 2016 Model BIT, see Prabhash Ranjan & Pushkar
Anand, The 2016 Indian Model Bilateral Investment Treay: A Critical Deconstruction, 38 NW. J. INT'L L. & Bus.
(forthcoming, 2018), draft available at https://papers.ssm.com/sol3/papers.cfmiabstractid=2946041 (last accessed
on Aug. 11, 2017). Other recent examples of withdrawals from bilateral investment treaties include South Africa,
Indonesia and Ecuador.
16 See Transatlantic Trade and Investment Partnership [hereinafter TTIP], Trade in Services, Investment and E-
Commerce, ch. II - Investment (Commission draft text TTIP - investment, Sept. 16,
2015),http://trade.ec.europa.eu/docib/docs/2015/september/tradoc_153807.pdf (last accessed on Aug. 11, 2017).
For further background see Gabrielle Kaufimann-Kohler & Michele Potest i, Can the Mauritius Convention serve as a
modelfor the re/orm of investor-State arbitration in connection nith the introduction of a permanent investment tribunal or an appeal
mechanism?, (CIDS - Geneva Ctr. for Int'l Disp. Settlement Research Paper, Jun. 3, 2016), https://1k-k.com/wp-
content/uploads/2016/05/IAUFMANN-KOHLER-POTESTA-CIDS-Research-Paper-Reform-of-Investor-State-
Arbitration-2016.pdf (last accessed on Aug. 11, 2017).
17 SIAC IA Rules, r. 5.1 & 5.2.
18 SIAC IA Rules, r. 5.2 in fine. The criteria to be considered by the Court in this regard are "the complexiy, the quantum
involved or other relevantcircumstances of the dispute".
19 ICC Rules, art. 2(1) app. VI ("Expedited Procedure Rules") authorises the ICC Court of Arbitration to appoint a sole
arbitrator in arbitration proceedings under the Expedited Procedure rules, even if the parties had agreed otherwise,
i.e. to a three-arbitrator tribunal, in the arbitration agreement. SIAC Rules, r. 5.2(b) contains a similar provision.

76
 INDIAN JOURNAL OF ARBITRATION LAW

complexity and workload of most investment arbitration proceedings, however, it appears

unlikely that the Court will make extensive use of this rule.

In contrast to the ICSID Rules, and taking into consideration the criticism investor-State
arbitration frequently faces regarding the time taken to constitute a tribunal, the SIAC IA Rules
provide relatively short deadlines for the nomination of arbitrators. If, on a three-arbitrator
tribunal, a party fails to nominate its arbitrator within 35 days after receipt of the other party's
nomination, the Court will appoint an arbitrator in lieu of that party.2 0 Failing an agreement
among the parties, the Court will also appoint the presiding arbitrator.

These deadlines are longer than the nomination deadlines under the SIAC Arbitration Rules2 1
which require a nomination within 14 days after receipt of the other party's nomination of an
arbitrator, but are substantially shorter than the deadlines under the ICSID Rules22 pursuant to
which the tribunal must be constituted within 90 days from the dispatch of the notice of
registration by the Secretary-General. It remains to be seen how the short deadlines under the
Rules, which especially for States with their administrative processes (which may, for example,
require prior authorisation of certain procedural decisions by superordinate government bodies)
are likely to prove quite challenging, will fare with potential users.

Having said that, the appointment system adopted under the SIAC IA Rules not only shortens
and streamlines the nomination procedure, but the active role of the Court also ensures that the
non-participation of a party, often for strategic reasons, does not prevent the proceedings from
advancing. Given the significant amount of time that usually passes between the initiation of the
proceedings and the constitution of the tribunal, this is a welcome development which is likely to
contribute to more cost and time efficient arbitral proceedings.

Finally, it is worth mentioning that even in cases where an arbitrator is appointed by the Court,
SIAC involves the parties in the procedure. Pursuant to Rule 8(a)-(e), the Court initially invites
the parties to express their views on the necessary qualifications of the arbitrator and, on that
basis, compiles a list of candidates (including at least five names), which is then communicated to
the parties. The parties may delete any candidates they consider unfit and must number the
remaining names in order of preference. If a candidate is acceptable to both parties, the Court
will appoint that candidate. Only if a mutually acceptable candidate cannot be found, the Court
will appoint a candidate at its discretion. While this approach is decidedly more liberal than the
closed-list approach favoured by other arbitral institutions (e.g. by the Court of Arbitration for
Sport), it does impose certain limitations on the freedom of each party to appoint an arbitrator
of its choice. However, in view of the parties' ability to participate in the appointment procedure,
in particular by setting out the relevant qualifications, and the added value of the Court's

20 SIAC IA Rules, r. 7.2. If a sole arbitrator is to be appointed, the time limit for a joint appointment by the parties is
42 days after the commencement of the arbitration, failing which the Court will appoint the sole arbitrator (SIAC IA
Rules, r. 6.2).
21 SIAC Rules, r. 10.2 & 11.2.
22 Convention on the Settlement of Investment Disputes between States and Nationals of other States, March 18,
1965, 575 U.N.T.S. 159, art. 38 [hereinafter"ICSID Convention"]; ICSID Rules, r. 4. The first draft of the SIAC IA
Rules, however, provided for even shorter deadlines of 28 days for the (joint) nomination of a sole arbitrator and the
nomination of a party-appointed arbitrator on a three-member tribunal respectively.

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 VOLUME 6, ISSUE 1 2017

expertise with respect to suitable candidates, SIAC's list approach appears to be a sensible
compromise with particular benefits for less experienced parties.

B. Challenge of Arbitrators
The challenge of arbitrators under the SIAC IA Rules follows similar efficiency considerations.

The opportunity to challenge an arbitrator protects the right of the parties to an independent and
impartial tribunal2 3 and constitutes a fundamental pillar of arbitration. In recent years, however,
arbitrator challenges have increasingly become an instrument of obstruction. This is particularly
visible in investment arbitration where (repeated) challenges against arbitrators are increasingly
made in order to delay and frustrate the proceedings.2 4

In ICSID proceedings, arbitrator challenges are particularly effective because they must be
decided by the tribunal itself and - until resolved - effectively suspend the on-going
proceedings.2 5 Moreover, while challenges are to be filed "prompty under the ICSID Rules26 , the
content of this notion is vague and likely to lead to debate between the parties as to whether a
challenge was raised in time. Furthermore, the ICSID Rules expressly permit challenges until the
proceedings are closed and, in practice, challenges are indeed often brought late in the
proceedings.

The SIAC IA Rules opt for a different approach in which challenges to arbitrators are decided
not by the tribunal, but by the Court.2 7 While the Court decides on the challenge, the arbitration
may, at the discretion of the Registrar, proceed. 2 8

Moreover, strict deadlines for challenges apply under the SIAC IA Rules. Arbitrator challenges
must be made within 28 days of (i) the appointment of the arbitrator, or (ii) after the challenging
party became aware of circumstances giving rise to justifiable doubts as to the arbitrator's
impartiality or independence.2 9 Moreover, and notably, the challenging party must pay a non-
refundable challenging fee. 0 This approach is based on and consistent with the SIAC Rules 3 ' and
may serve to prevent or at least reduce vexatious challenges. If, within 21 days from receipt of

23 SIAC IA Rules, r. 10.1.

24 For prominent examples of investment arbitrators being subjected to repeated challenges by the parties, see Lacey
Yong, Ruing rejecting Kaufmann-Kohler conflict upheld by ICSID committee, GLOBAL ARB. REV. (May 7, 2017);
(ConocoPhillips Petrozuata B.V., ConocoPhillips Hamaca B.V. and ConocoPhilips Gulf of Paria B.V. v. Bolivarian
Republic of Venezuela, ICSID Case No. ARB/07/30, Decision on the Proposal to Disqualify L. Yves Fortier, Q.C.,
Arbitrator (July 26, 2016).
25 See ICSID Convention, art. 57 & 58. However, arbitrator challenges and their effects on pending proceedings were
identified as a potential area of amendment in the current ICSID Rules amendment process initiated in October
2016, see https://icsid.worldbank.org/en/Documents/about/ICSID%/`20Rules%/`20Amendment%/`20Process-
ENG.pdf (last accessed on Aug. 11, 2017).
26 ICSID Rules, r. 9(1).
27 SIAC IA Rules, r. 12 & 13. The main advantages of this approach are (i) that the Court may adjudicate arbitrator
challenges as a neutral instance, (ii) that the arbitration may proceed while the Court decides on the challenge and
(iii) that the decision of arbitrator challenges by the Court rather than by arbitral tribunals may (as demonstrated by
the practice of the LCIA Court which regularly publishes its challenge decisions) contribute to the development of a
more uniform and reliable "case law" on arbitrator challenges.
28 SIAC IA Rules, r. 12.4.
29 SIAC IA Rules, r. 12.1.
30 SIAC IA Rules, r. 12.3 and sched. 2. The challenge fee is SGD 8,000 for overseas Parties and SGD 8,560 (including
7 % Goods and Services Tax) for Singapore Parties.
31 See SIAC Rules, r. 15 & 16.

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 INDIAN JOURNAL OF ARBITRATION LAW

the challenge, the other party does not agree to the challenge and the challenged arbitrator does
not withdraw from office, the Court will decide on the challenge.32

V. Conduct of the Proceedings

This section will set out the procedural powers granted to the tribunal under the SIAC IA Rules
(section V.A) and then address the approach of the Rules with respect to third-party funding
(section V.B) as well as the early dismissal of claims and defences (section V.C).

A. Powers of the Tribunal

The SIAC IA Rules aim to reduce the kind of "procedural deadlocks" that often occur in other
investor-state disputes by providing the tribunal with broad procedural powers even in the
absence of a party agreement to that effect.

In accordance with international arbitral practice and unless otherwise agreed by the Parties, Rule
16.5 authorizes the presiding arbitrator to make procedural rulings alone. Furthermore, unless
otherwise agreed upon by the parties, the tribunal may appoint an expert to report on specific
issues and may require the parties to provide that expert with relevant information. Experts
may provide opinions on points of both law and fact, with legal opinions having become
particularly prevalent in recent years. Finally, the tribunal may decide on the number of
submissions and the content and style of those submissions.34 While all of these points are
relatively minor, their impact on the conduct of the proceedings should not be underestimated.
In practice, they may serve to circumvent the deadlocks frequently experienced once the
proceedings have been initiated, particularly in the early stages of the proceedings, and before the
tribunal has rendered its first procedural order.

The other procedural powers of the tribunal under Rule 24 reflect international arbitral practice
and rely, inter alia, on the SIAC Rules. In the absence of an agreement between the parties on
central procedural issues, the tribunal is provided with significant case management powers,
including with respect to the setting of time limits, the investigation of the facts, including
production of documents, the issuance of orders on securities for costs or the determination of
the applicable law.

B. Third-Party Funding
A major innovation of the SIAC IA Rules is Rule 24(1) which provides specific guidance with
respect to third-party funding arrangements in investor-state arbitration.

In recent years, third-party funding - which is the funding of a dispute by a (usually commercial)
non-party in exchange for an agreed return - has emerged as one of the hot topics in
international arbitration. It plays a particularly prominent role in investment arbitration where
disputes tend to be both long and costly, creating a need for external financing." Third-party

32 In accordance with SIAC IA Rules, r. 13.4, the Court will issue a reasoned decision.
33 SIAC IA Rules, r. 23.
34 SIAC IA Rules, r. 17 requires memorial-style submissions, i.e. the parties are required to submit witness statements
and/or expert opinions together with their written submissions. This is in contrast to pleading-style submissions (see
e.g., SIAC Rules, r. 20) which do not require the parties to attach their evidence, and aims to further expedite and
streamline the proceedings.
3s From the abundance of recent literature on this topic, see only Khushboo Hashu Shadadpuri, Third-Pary Funding in
InternationalArbitration:Regulating the Treacherous Trajectory, 12 (2) ASIAN INT'L ARB. J. 77 (2016).

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 VOLUME 6, ISSUE 1 2017

funding arrangements enable not only parties with limited liquidity and/or funds but also those
simply wishing to outsource their litigation risks to obtain the funds necessary to pursue a
potential multi-year dispute. As a result, a rapidly growing market for third-party funders has
emerged which, among others, finances the overwhelming majority of currently pending
investment arbitration cases.

Unsurprisingly, these developments have sparked discussion on whether and how this market
should be regulated. Singapore and Hong Kong have been at the forefront of legislative action,
each introducing third-party funding bills in January of 2017." Third-party funding arrangements
have also triggered debate among legal scholars and arbitrators, relating inter alia to the question
of whether such agreements must be disclosed in order to avoid possible conflicts of interest,
and also to broader ethical and regulatory considerations such as, if and to what extent funders
may control the proceedings and how they should be regulated (e.g. with respect to their
financial endowment)." Recently, several ICSID tribunals have ordered parties to disclose the
identity of third-party funders, basing their decision on the "inherent powers" of the arbitral
tribunal, instead of specific rules addressing this issue.3

The SIAC IA Rules expressly authorize tribunals to order the disclosure of the existence of a
third-party funding arrangement and/or the identity of the third-party funder. Where
appropriate, the tribunal may also order the disclosure of details of the third-party funder's
interest in the outcome of the proceedings. 9 Furthermore, the tribunal may take into account the
existence of third-party funding arrangements when making decisions on costs. 40 Although the
draft SIAC IA Rules went even further by, inter alia, authorizing the Tribunal to render cost
orders against funders, the SIAC IA Rules have provided investment arbitrators with new and
far-reaching powers whose application in practice will have to be monitored.

Nonetheless, the SIAC's approach to third-party funding under the SIAC IA Rules provides
welcome certainty on an increasingly important subject-matter and authorises the tribunal - even
in the absence of a party agreement - to investigate the factual background of a third-party
funding arrangement and its possible implications on the arbitral proceedings to the extent it
considers this necessary.

C. Early Dismissal of Claims and Defences

Much of the negative publicity that investment arbitration is currently facing relates to actual or
perceived 'frivolous' claims advanced by private parties against sovereign States. Irrespective of
whether these claims are actually 'frivolous' or not, which is rarely evident and almost always

36 For further information see Boog & Raneda, supra note 10. In Singapore, one of the central requirements is that
third-party funders must fulfill certain minimum requirements related to their financial resources in order to be able
to offer third-party funding services. In Hong Kong, the existence of a funding agreement (but not its content) must
be disclosed at the outset of the arbitral proceedings.
SSee e.g, JONAS VON GOELER, THIRD-PARTY FUNDING IN INTERNATIONAL ARBITRATION AND ITS IMPACT ON
PROCEDURE, ch. 4, 125 - 162 (2016).
38 EuroGas Inc. and Belmont Resources v. Slovak Republic, ICSID Case No. ARB/14/14, Procedural Order No.
3,
(June 23, 2015); Muhammet Cap & Sehil Inaat Endustri ve Ticaret Ltd. Sti v. Turkmenistan, ICSID Case No.
ARB/12/6, Procedural Order No. 3 (June 12, 2015). See also South American Silver Limited (Bermuda) v. Bolivia,
PCA Case No. 2013-15, Procedural Order No. 10 (Jan. 11, 2016).
39 SIAC IA Rules, r. 24(1). In an earlier draft of the SIAC IA Rules, the tribunal was also granted the power to issue a
cost award against the third-party funder. This provision was subsequently removed.
40 SIAC IA Rules, r. 33.1.

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subject to disagreement between the parties, it is undisputed that, in recent years, arbitral
proceedings have become increasingly costly and time-consuming, frequently due to deliberate
obstructive behaviour by certain parties.

As a consequence of these developments, arbitral institutions have increasingly been looking for
means to address manifestly meritless claims and defences as swiftly as possible in order to
streamline the arbitral process and reserve time and resources for 'real' cases.

Rule 26 of the SIAC IA Rules addresses this issue by providing for an early dismissal procedure.
According to Rule 26, a party may apply for early dismissal of a claim at any point during the
proceedings. Such a request may be made on the basis that the claim or defence is:

(i) manifestly without legal merit;

(ii) manifestly outside the jurisdiction of the Tribunal; or

(iii) manifestly inadmissible.

The early dismissal procedure set forth in Rule 26 was inspired by Rule 41.5 of the ICSID Rules,
according to which a party may file an objection with the tribunal that a claim is manifestly
without legal merit. However, Rule 26 is significantly broader than the ICSID Rules which
permit 'preliminary objections' only against the claim itself, but not against defences raised by the
Respondent. By contrast, Rule 26 explicitly permits the early dismissal of both claims and defences
and, in addition to imposing stricter time limits on the Tribunal for rendering its decision,
provides the Tribunal with tools to streamline the arbitral procedure and to address inefficiencies
as well as possible dilatory tactics employed by the Parties. The revised 2016 SIAC Rules also
include an early dismissal procedure. 41 Under the 2016 SIAC Rules, an early dismissal is possible
for claims and defences which are either manifestly without legal merit or manifestly outside the
jurisdiction of the tribunal.

The SIAC IA Rules are broader than both the ICSID Rules and the 2016 SIAC Rules and
expand the scope of the early dismissal procedure to claims and defences that are manifestly
inadmissible. While the available ICSID case law on claims that are "manifestly without legal meri" 42
may offer some guidance as to the future application of this provision, it remains to be seen how
SIAC investment tribunals will apply Rule 26 in practice.

In terms of procedure, a party seeking early dismissal must first make an application to the
tribunal (copying the other party), stating in detail the facts and law supporting its application.
The tribunal will then decide, in its discretion, whether or not to allow the application to
proceed. If the tribunal allows the application to proceed, it will hear all parties and then render
its decision.43 Under the SIAC IA Rules, the tribunal must decide on the application within 90

41 SIAC Rules, r. 29. For further details, see Boog & Raneda, supra note 11, at 597 et seq.
42 See Trans-Global Petroleum, Inc. v. The Hashemite Kingdom of Jordan, ICSID Case No. ARB/07/25, The
Tribunal's Decision on the Respondent's Objection under Rules 41(5) of the ICSID Arbitration Rules (May 12,
2008).
43 The Tribunal may render its decision as an order or as an Award (SIAC IA Rules 2017, r. 26.4).

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days of the date of its filing.44 Although compared to the SIAC Rules 45 this time limit is extended,
for investment arbitration standards they are rather strict.

Whether or not the early dismissal procedure will have a significant impact on arbitral
proceedings under the SIAC IA Rules remains to be seen. While the SIAC's approach generally
deserves approval, it cannot be ignored that it bears the risk of additional "procedural battles"

-
resulting in additional cost and delay. Moreover, it can be expected that tribunals will be reluctant
to make use of this instrument too frequently, as any early dismissal entails the risk of
subsequent challenges of the arbitral decision for an alleged violation of a party's right to be
heard.

VI. Interim and Emergency Interim Relief

The SIAC IA Rules not only expressly authorize the parties to seek interim relief from the
tribunal 46
or from the state courts 47, but also introduce an Emergency Arbitrator procedure. 48

In recent years, emergency arbitrator procedures have become increasingly popular and several
arbitral institutions have amended their rules to include such procedures.49 SIAC was and still
remains one of the pioneers of emergency arbitration, having introduced an emergency arbitrator
procedure in its Rules for the first time in 2010. As of March 31, 2017, SIAC has administered 57
emergency arbitrations, far more than any other arbitral institution.o

Other institutional rules have taken different approaches to the applicability of emergency
arbitrator provisions to investor-State disputes. Under the ICC Rules, emergency arbitrator
proceedings are expressly excluded for any treaty-based arbitration. By contrast, under the SCC
Rules, the parties' agreement to arbitrate includes their presumed agreement to the emergency
arbitrator provisions set out in Appendix II of the Rules, without any exception for investor-
State disputes, whether treaty-based or otherwise. 5 1 As a result, a party may initiate emergency
arbitrator proceedings against a State without that State having expressly consented to such
emergency arbitration.52 The ICSID Rules does not provide for emergency arbitration at all.

The SIAC IA Rules take a mediating position. While they provide for the possibility of an
emergency arbitrator, these provisions only apply if all parties have given their express and

44 SIAC IA Rules, r. 26.4.

45 Under the SIAC Rules, the time limit is 60 days (SIAC Rules, r. 29.4).
46 SIAC IA Rules, r. 27.1.
47 Id. r. 27.2.
48 Id., r. 27 and sched. 1.

49 Emergency arbitrator provisions have inter a/a been introduced by the International Centre for Dispute Resolution
of the American Arbitration Association, the Stockholm Chamber of Commerce, the Swiss Chambers' Arbitration
Institution, the Hong Kong International Arbitration Centre, the London Court of International Arbitration and the
World Intellectual Property Organization.
5o For details on the SIAC emergency arbitrator mechanism, see Boog & Raneda, supra note 11, at
598 et seq.
51 The Introduction to the SCC Rules states: "Under any arbitration agreement referring to the Arbitration Rues of the

ArbitrationInstitute of the Stockholm Chamber of Commerce (the "ArbitrationRules') the parties shall be deemed to have afeed that
the folloning rules, or such amended rules, inforce on the date of the commencement of the arbitration,or the fie of an abbdcation for
the abpointment of an Emergency Arbitrator, sha// be aboed unless othenise agreed by the earies." (emphasis added).
52 Since 2014, a total of four applications for emergency relief have been filed against State parties under the SCC
Rules (TSIKinvest v. Republic of Moldova, SCC Emergency Arbitration No. EA (2014/053) (Apr. 29, 2014); JKX
Oil & Gas plc, Poltava Gas BV and Poltava Petroleum Co. v. Ukraine, SCC, Emergency Award, (Jan. 14, 2015);
Evrobalt v. Republic of Moldova, SCC Case No. 2016/082 (May 30, 2016); Kompozit v. Republic of Moldova, SCC
Arbitration EA (2016/095) (Jun. 14, 2016).

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specific consent." In contrast to the opt-out mechanism of the SCC Rules, the SIAC IA Rules
thus favour an opt-in approach which gives more deference to the conscious decision of the
parties for or against emergency arbitration.

In its details, the emergency arbitrator procedure set out in Schedule 1 of the SIAC IA Rules is
largely modelled after the emergency arbitration provisions in the SIAC Rules.

Proceedings are initiated by filing a written application for emergency interim relief with the
SIAC Registrar. The application must specify the nature of the relief sought, the reasons why the
applicant is entitled to such relief and a statement certifying that all parties have been provided
with a copy of the application.54 The Court will then decide in its discretion whether or not to
allow the application to proceed. If the Court accepts the application, it will seek to appoint an
emergency arbitrator within one day of receipt of the application and payment of the
administration fee and deposits." Within two days of its appointment, the emergency arbitrator
will establish a procedural schedule. While the schedule must provide reasonable opportunity for
the parties to be heard, the emergency arbitrator and the parties are largely free to determine the
details of the procedure, including, for example, the freedom to agree to proceedings by
telephone or video-conference or to have written submissions only in lieu of a hearing." The
emergency arbitrator must render his/her decision within 14 days from the date of
appointment. 5 7 Extensions of this time limit will be granted by the Registrar only in exceptional
circumstances. 58

Given its significant experience with emergency arbitration procedures, there is no doubt that
SIAC possesses the necessary expertise and administrative capabilities to successfully administer
emergency arbitrations under the SIAC IA Rules. Yet, as the emergency arbitrator provisions
only become applicable if all parties - including State parties - expressly declare their consent, it
is uncertain whether these provisions will play a significant role in practice. In view of the
reservations that State parties may harbour against emergency arbitrator procedures, which may
be perceived by them as a measure to curtail their sovereign rights, and also taking into
consideration the fact that emergency interim relief will almost always be sought against State
parties, there is reason to believe that State parties will rarely grant their consent to emergency
arbitration.

Further, emergency arbitrator proceedings in the context of investment arbitration raise

additional questions, the detailed discussion of which goes beyond the scope of this piece, but
which would likely also influence the decision of the parties on whether to opt for emergency

53 SIAC IA Rules, r. 27.4.

54 Id. sched. 1, T 1.
55 The non-refundable administration fee for emergency arbitrator applications is SGD 5,350 (including 7 per cent
GST) for Singapore Parties and SGD 5,000 for Overseas Parties. In addition, the applicant must pay a deposit of
SGD 30,000 toward the Emergency Arbitrator's fees and expenses, the standard fee for the Emergency Arbitrator
being SGD 25,000.
56 SIAC IA Rules, sched. 1, T 7.
57 Id. sched. 1, T 9. For comparison, under the SCC Rules the emergency arbitrator must render its decision within five
days from the date on which the application was referred to it (SCC Rules 2017, art. 8 app. II). Under the ICC Rules,
the emergency arbitrator must render its decision within 15 days from the date of the transmission of the file (ICC
Rules, art. 6(4), app. V).
58 Id. sched. 1, T 9.

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arbitration. These include, for example, the compatibility of emergency arbitration with the
cooling-off periods provided for in many bilateral investment treaties or the question of whether
the right to emergency arbitration can be "exported' to other treaty regimes by means of most-
favoured nation (MFN) clauses.59

VII. Third-Party Submissions

In recent years, the legitimate role of public interests in investment arbitration proceedings and,
more specifically, the participation of third parties (also referred to as "amici curiae") in those
proceedings have become a frequently debated issue. Several ICSID tribunals"o, as well as the
WTO Panels and the Appellate Body", have addressed this question and have attempted to
strike a balance between the privacy and confidentiality interests of the parties to the dispute on
the one hand and the public interest often represented by non-governmental organisations on
the other hand, with regard to public access to proceedings and information on how
governmental decision-making and public funds will be affected by the decisions of investment
arbitration tribunals. As the legitimacy of the investment arbitration system is increasingly
coming under scrutiny, the international community has reacted by making arbitral procedure
more transparent, inter alia by enacting the UNCITRAL Rules on Transparency in Treaty-based
Investor-State Arbitration [the "UNCITRAL Transparency Rules"]. 62

The SIAC IA Rules must be understood against this trend towards greater transparency in
investment arbitration. The Rules focus on a particular aspect of third-party participation, namely
the right of non-disputing parties to make written submissions to the tribunal. They distinguish
between two scenarios:

1) Submissions by Non-disputing Contracting Parties on questions of treaty interpretation

that are directly relevant to the dispute (Rule 29.1);

2) Submissions by Non-disputing Contracting Parties or Non-disputing Parties regarding a

matter within the scope of the dispute (Rule 29.2).

A Non-disputing Contracting Party is defined in Rule 1.5 as "a pary to a treatypursuant to which the
dispute has been referred to arbitrationin accordance with these Rules and that is not a Pary to the arbitration"
whereas a Non-Disputing Party is defined as "a person or entity that is neither a Party to the
arbitration nor apary to a treatypursuantto which the dispute has been referredto arbitrationin accordance with
these Rules". A Non-disputing Contracting Party may make a submission pertaining to treaty
interpretation at its own discretion without having to seek leave from the tribunal to do so. The
only requirement for the Non-disputing Contracting Party is to provide, together with its

59 For background, see Joel Dahlquist, Emergency Arbitrators in Investment Treaty Diputes, KLUWER ARB. BLOG, (Mar. 10,
2015), http://kluwerarbitrationblog.com/2015/03/10/emergency-arbitrators-in-investment-treaty-disputes/ (last
accessed on Aug. 11, 2017).
60 Between 2003 and 2017, ICSID tribunals rendered a total of 51 decisions on amicus curiae applications, 20 in 2016
and 2017 alone. For further detail, see Dedsions on Non-Diputing Pary Partiajation, ICSID,
https://icsid.worldbank.org/en/Pages/Process/Decisions-on-Non-Disputing-Party-Participation.aspx (last
accessed on Aug. 11, 2017).
61 Appellate Body Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products,
WT/DS135/AB/R (Apr. 5, 2001); Appellate Body Report, United States - Import Prohibition of Certain Shrimp and
Shrimp Products,WT/DS/58/AB/R, ¶ 99 etseq (Oct. 12, 1998).
62 The UNCITRAL Transparency Rules came into effect on April 1, 2014 and provide members public access to
documents and hearings in UNCITRAL arbitrations, and grant them the opportunity to make submissions in certain
circumstances. Nonetheless, they allow for exceptions to be made to protect confidential information.

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submission, a written notice to the Registrar and the parties. The Non-disputing Contracting
Party's right to make submissions results from the fact that it is a signatory to the relevant treaty
and is therefore assumed to have a legitimate interest in setting forth its position regarding the
interpretation of such treaty which may become relevant in future disputes where this Party is
involved.

By contrast, submissions by Non-disputing Contracting Parties or Non-disputing Parties

regarding a matter within the scope of the dispute require a prior application to the tribunal. The
legitimate interest of a Non-disputing Party to participate in the proceedings may not be
immediately apparent. In determining whether to allow an application under Rule 29.2 to
proceed, the tribunal will consider the views of the parties and notably, whether the submission
would assist the tribunal in the determination of a factual or legal issue, and whether the Non-
disputing Contracting Party or Non-disputing Party has a 'sufficient interest' in the arbitral
proceedings." With respect to the 'sufficient interest' criterion, SIAC tribunals may draw on the
case law handed down with regard to similar provisions in the ICSID Rules 6 4 and under the
North American Free Trade Agreement ["NAFTA"]" which require a 'significant interest' for
third parties to be admitted as amid curiae.

The form, content and time limits of any submission by a Non-disputing Party are subject to the
discretion of the tribunal." The tribunal may also, at its discretion, grant the Non-disputing Party
access to procedural documents, provided that it takes appropriate measures to safeguard the
confidentiality of sensitive information." It is likely that such issues of confidentiality will play a
significant role in practice and will, in each case, require a careful balancing of interests by the
tribunal.

VIII. Confidentiality and Publication of Decisions

Investment arbitration proceedings under the SIAC IA Rules are confidential. Rule 37.1 sets
forth a comprehensive confidentiality obligation which requires all involved persons as well as
the institution itself to keep any information on the proceedings, including their existence,
confidential. In addition, hearings are private and any recordings, transcripts or documents used
in relation to the arbitral proceedings are also confidential.' 8

There are, however, significant exceptions to the general rule of confidentiality which reflect a
broader trend towards greater transparency in investment arbitration. For reasons of political
accountability and the often significant public interest in investment arbitration cases, investor-
state disputes have gradually become more transparent in recent years. Inspired by a number of

63 SIAC IA Rules, r. 29.3(a) & (c).

64 ICSID Rules, r. 37(2)(c). For further background, see A. Saravanan & S.R. Subramanian, The Part/iaation of Amicus
Curiae in Investment Treaty Artration, 5 (4) J. CIV. & LEGAL Sc. 1 (2016),
https://www.omicsgroup.org/journals/the-participation-of-amicus-curiae-in-investment-treaty-arbitration-2169-
0170-1000201.pdf (last accessed on Aug. 11, 2017).
65 Methanex Corporation v. United States of America, Decision of the Tribunal on Petitions from Third Persons to
Intervene as 'Amici Curiae' (Jan. 15, 2001); United Parcel Service of America Inc. v. Canada, ICSID Case No.
UNCT/02/1, Award on Jurisdiction (Nov. 22, 2002).
66 SIAC IA Rules, r. 29.5 & 29.6.
67 Id. r. 29.8.
68 Id. r. 21.4.

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decisions by arbitral tribunals, this trend culminated in the adoption of the UNCITRAL
Transparency Rules.

The SIAC IA Rules reflect this trend in that they allow the SIAC to publish certain case-relevant
information even without the consent of the parties.70 By agreeing to arbitration under the SIAC
IA Rules, the parties are deemed to have consented to the SIAC publishing information on the
nationality of the parties, the identity of the members of the tribunal, the relevant legal
instrument and the current status of the proceedings." Furthermore, SIAC may publish redacted
excerpts of the tribunal's reasoning and redacted decisions by the Court on challenges to
arbitrators.72

The publication of other information, for example the identity of the parties and their counsel,
the subject-matter of the dispute, the amount in dispute and the procedural history, requires the
express consent of the parties.

In its approach, Rule 38 is very similar to the ICSID Rules. 74 However, it is decidedly less
transparent than the UNCITRAL Transparency Rules which aim to provide transparent
proceedings through publication of documents, information and open hearings.75 The SIAC IA
Rules, by contrast, take a more nuanced approach which reveals and reflects their inspiration
from the SIAC's commercial arbitration rules and their corresponding standard of transparency.
Admittedly, striking a balance between the interests of the parties, which will generally prefer
confidential proceedings, and of the broader public, which will insist on greater transparency, is a
difficult undertaking. While the UNCITRAL Transparency Rules take a clear pro-transparency
stance, which is likely to also influence the upcoming revision of the ICSID Arbitration Rules76,
the SIAC IA Rules give greater deference to the presumed confidentiality interests of the parties.
Whether and to what extent those interests indeed exist in every case and how SIAC investment
tribunals will interpret the Rules and balance the concerned interests in practice remains to be
seen.

IX. Awards
In accordance with the objective to streamline arbitral proceedings, the SIAC IA Rules
emphasize that the award shall be made as promptly as possible. Rule 30.3 grants the tribunal 90
days from the date on which the tribunal declared the proceedings closed, which in turn shall be
done "as promptl as possible" after the tribunal is satisfied that the parties have no further relevant

69 See supra section VII.

70 SIAC IA Rules, r. 38.
71 Id. r. 38.1 & 38.2.
72 Id. r. 38.2. ICSID has been publishing redacted excerpts of awards since 1972. The publication of challenge
decisions, which serves to elucidate current international best practice in this regard, was started by the London
Court of International Arbitration in 2011, see Thomas W. Walsh & Ruth Teitelbaum, The LCL4 Court Decisions on
Challenges to Arbitrators:An Introduction, 27 (3) ARB. INT'L 283 (2011).
7 SIAC IA Rules, r. 38.3.
74 ICSID Rules, r. 48.4.
75 The first cases in which the UNCITRAL Transparency Rules were applied are Iberdrola, S.A. and Iberdrola Energia.
S.A.U. v. Bolivia, PCA Case No. 2015-05, Procedural Order (Aug. 7, 2015); BSG Resources Limited v. Republic of
Guinea, ICSID Case No. ARB/14/22, Procedural Order No. 2 (Sept. 17, 2015).
76 The ICSID Arbitration Rules reform process formally commenced in October 2016. The scope of the contemplated
rules revision is set out in an ICSID paper, The ICSID Rules Amendment Process,
https://icsid.worldbank.org/en/Documents/about/ICSID%/`20Rules%/`20Amendment%/`20Process-ENG.pdf (last
accessed on Aug. 11, 2017).

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and material evidence, to send the draft award to the SIAC Registrar. This time limit may only be
extended upon agreement by the parties or decision by the Registrar. By contrast, no such time
limit to render the award exists under the ICSID Rules. The award is subject to scrutiny by the
Registrar who may "suggest modifications as to the form of the Award and, ithout affecting the Tribunal
libery to decde the dispute, draw the Tribuna'sattention to points of substance".7 While scrutiny of awards
is practiced by a number of commercial arbitration institutions, most notably the ICC, it is
uncommon in investment arbitration. Neither the ICSID Rules nor the SCC Rules provide for a
review of the award by the institution.

Rule 30.11 clarifies that the award is final and binding and that the parties are obligated to carry
out the award immediately. It further states that the parties also "irrevocaby waive their rights to any
form of appeal, review or recourse to any State court or otherjudicialauthoriy with respect to such award insofar
as such waiver may be validly made". Combined with the fact that - as is the case under the ICSID
regime7 1 - SIAC awards are not subject to annulment proceedings, the Rules ensure the finality
of any decision taken by the tribunal.

However, the issue of immunity from enforcement remains and it is therefore likely that many of
the problems linked to the State party's principal immunity from enforcement will persist. In
addition, it remains to be seen whether the decidedly investor-friendly approach taken by the
SIAC IA Rules will a priori deter State parties from submitting their investment disputes to the
SIAC.

X. Costs
The fee regime of the SIAC IA Rules8
is based on the SIAC Rules. As a rule, administrative and
arbitrator fees are based on the amount in dispute and may thus vary depending on the financial
scope of the matter.

All arbitrations initiated under the SIAC IA Rules are subject to a reasonable yet non-refundable
filing fee of SGD 2,000.81 In addition to the filing fee, and depending on the amount in dispute,
SIAC charges an administration fee between SGD 3,80082 and SGD 95,00083. Arbitrator fees also
vary depending on the amount in dispute and range from SGD 6,25084 to SGD 605,00085, plus a
percentage of the amount in dispute.

By comparison, the ICSID fee schedule is not based on the amount in dispute, but applies fixed
rates both for administrative and arbitrator fees. The administrative fee charged by ICSID upon

77 ICSID Rules, r. 47.

78 SIAC IA Rules, r. 30.3.
79 ICSID Convention, art. 52.
80 SIAC IA Rules, r. 32-35 & Schedule of Fees.
81 The filing fee is SGD 2,140 (including 7 % Goods and Services Tax) for Singapore Parties.
82 Sum in dispute of up to SGD 50,000.
83 Sum in dispute above SGD 100,000,000.
84 Sum in dispute of up to SGD 50,000.
85 Sum in dispute above SGD 500,000,000.
86 The percentage decreases as the sum in dispute increases, and varies between 13.8 % (of excess over 50,000) and
0.004 % (of excess over 500,000,000) of the sum in dispute. The maximum fee for an arbitrator is capped at SGD
2,000,000.

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initiation of the arbitral proceedings is currently USD 42,000.87 It is an annual fee which becomes
due each year thereafter for the duration of the proceedings. ICSID arbitrators are paid a flat
per-day fee of USD 3,000.88 In view of the often long duration of ICSID proceedings, the costs
of the proceedings can become very significant. Particularly for less complex proceedings and
those with potentially smaller amounts in dispute, the SIAC IA Rules may therefore offer a
cheaper alternative to ICSID proceedings.

XI. Conclusion and Outlook

With the enactment of the SIAC IA Rules, Singapore is aiming to position itself as a new hub for
investment arbitration, both in Asia and beyond.

The SIAC IA Rules offer a modern, innovative and high-quality set of rules. They address - and
present balanced solutions to - the most pressing issues facing international investment
arbitration, drawing on its experiences from the application of the SIAC Rules as well as
international best practice in investment arbitration.

The SIAC IA Rules actively address some of the main points of criticism which have been raised
against investment arbitration in recent years, in particular, with respect to the transparency of
proceedings and the participation of non-disputing stakeholders. Here, the SIAC IA Rules aim to
strike a (difficult) balance between the interests of the parties and that of the broader public. As a
result of this balanced approach, in terms of transparency and third party participation, the SIAC
IA Rules do not go as far as the UNCITRAL Transparency Rules, for instance, and also do not
reflect all of the numerous amendment suggestions which are currently being debated in the
context of the revision of the ICSID Arbitration Rules.

However, irrespective of the above, the question of whether or not the SIAC will manage to
establish itself as a viable alternative to ICSID and ad hoc investment arbitration proceedings will
primarily depend on whether the SIAC IA Rules will gain acceptance by both investors and
States. While certain features of the SIAC IA Rules such as the comparatively lower
administrative costs may appeal to both sides, other more investor-friendly features such as their
broad scope of application or shorter time limits may in particular deter State parties from
consenting to their application. On the other hand, the possibility to make reservations (for
example in relation to jurisdictional matters or time limits) may accommodate some of the
concerns that State parties may harbour regarding the application of the SIAC IA Rules.

In any event, as demonstrated by the example of other investment arbitration bodies such as
ICSID, new players need a long breath. It will likely be some time before the SIAC IA Rules will
be put to test for the first time and it remains to be seen if and how they will pass this test. While
Singapore undoubtedly has the expertise, the experience and the infrastructure to handle
complex investment arbitration cases, the challenges to legitimacy that investment arbitration
itself is currently facing from a critical public as well as from recently elected administrations, and
the proposals for new forms of investor-State dispute settlement mechanisms such as standing
investment courts, render any prediction as to the future success the SIAC IA Rules difficult.

87 ICSID Schedule of Fees (effective July 1, 2017), T 5. In addition, ICSID charges a filing fee of (currently) USD
25,000 (ICSID Schedule of Fees, T 1) as compared to the SGD 2,000 filing fee under the SIAC IA Rules.
88 Exclusive of reimbursement for travel and other expenses.

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The success of the SIAC IA Rules will largely depend on whether investment arbitration as a
whole is able to constructively react and adapt to the new Zeitgeist. The enactment of the
UNCITRAL Transparency Rules and the approach taken by the SIAC IA Rules, demonstrate
that there is a significant commitment to this goal within the investment arbitration community.

89