By Abraham Vergis, Asiyah Arif & Niki Chen, Providence Law Asia
abraham@providencelawasia.com asiyah@providencelawasia.com nawaz@providencelawasia.com
On 1 January 2017, the Singapore International Arbitration Centre (“SIAC”) introduced a specialized set of arbitral rules targeted directly at investment disputes.
With the introduction of the Investment Arbitration Rules 2017 (the “IA Rules”), the SIAC is now the first private arbitral institution to cater separately to investment and commercial arbitrations, distinguishing itself from other contemporary arbitral institutions.
The IA Rules are, in a large part, based on the SIAC Rules 2016. However, it includes a number of innovations and modifications designed specifically for investment arbitration. We highlight the key differences below:
I. Appointment of arbitrator(s)
The nomination and appointment of arbitrators under SIAC Rules 2016 operates largely on parties’ consent. Thus, this can be a long drawn process. In the IA Rules, to expedite matters, the Court of Arbitration of SIAC is empowered to appoint arbitrators for the parties if they fail to do so within the prescribed period [Rule 8].
To streamline the appointment process further, the IA Rules has introduced a default procedure for the appointment of the presiding arbitrator with strict (and relatively short) timelines to be complied with [Rule 8].
II. Appointment of emergency arbitrator
Under the IA Rules, the parties can apply for emergency arbitration only if both parties have expressly agreed for the emergency arbitration provisions in the IA Rules to apply [Rule 27.4, Schedule 1].
III. Third Party Submissions
Parties to the underlying contract who are not participants to the arbitration may request to make submissions to the Tribunal. The Tribunal may also invite written submissions from non-disputing contracting parties [Rule 29].
For matters that directly concern the dispute, the non-disputing contracting parties must have the Tribunal’s consent prior to making submissions. The Tribunal will consider the helpfulness and relevance of the submissions, the non- disputing parties’ interest in the matter, and whether disputing parties’ confidentiality will be violated [Rules 29.2 and 29.3].
IV. Third Party Funding Issues
The Tribunal can order the disclosure of third-party funding arrangements [Rule 24(l)], and to take such arrangements into account when approaching costs [Rule 33].
V. Confidentiality
Once parties have agreed to use the IA Rules, the parties shall be deemed to have allowed SIAC to publish information on proceedings. These are limited to nationalities of the parties, identities of the tribunal members, the treaty or other legal instrument under which the arbitration has been commenced, the date of commencement of the arbitration; and whether the proceedings are ongoing or have been terminated [Rule 38].
VI. Conclusion
The IA Rules will only be applicable to a dispute where the contracting parties have expressly
agreed to this, and it is foreseeable that the IA Rules may also be provided for in future investment treaties.
The robust rules will serve to strengthen SIAC’s reputation as a leading international arbitration centre and attract further bilateral and multilateral investment arbitration disputes to be resolved in Singapore.
If you would like information on this area of law, please contact:
Abraham VERGIS
Managing Director
+65 6438 1969
abraham@providencelawasia.com
Asiyah ARIF
Counsel
+65 6438 1969
asiyah@providencelawasia.com
You can also download this update as a PDF below.
This update is for your general information only. It is not intended to be nor should it be regarded as legal advice.