Singapore International Arbitration Centre Research Articles

The evolution of summary procedure in investment arbitration: past, present and future

Abstract The last 15 years have witnessed a substantial rise of summary procedure to gradually become more and more significant in the world of investment arbitration since ICSID Arbitration Rules first introduced it in 2006. Before the emergence of this procedure that allows early dismissal of claims, various states have criticized the time and costs needed to defend their position in investment proceedings. Against this background, the birth of summary procedure aims to help parties to save time and costs and avoid unnecessary consumption of parties’ resources by disposing of manifestly frivolous and unmeritorious at an early stage of the proceedings. This feature has captured much attention since major arbitration institutions started to adopt it, with ICSID being the pioneer, followed by the Singapore International Arbitration Centre (SIAC) and the Arbitration Institute of the Stockholm Chamber of Commerce (SCC). Given its increasing importance in investment disputes, the ICSID has lately published a series of Working Papers which, among many other things, proposed to enhance the rule on ‘manifest lack of legal merit’. This article aims to look back on the evolution of summary procedure in investment arbitration for the last 15 years by examining its genesis and development, the current regime, and tribunals’ application of this procedure in practice, the future contemplated by the ICSID proposed amendments.

Advancing Thought-Leadership in Mediation: Highlights from the work of SIDRA

This chapter on mediation focuses on the work of the Singapore International Dispute Resolution Academy (SIDRA), a research centre at the Singapore Management University School of Law. It explores how SIDRA has created a platform for thought-leadership in international dispute resolution theory, practice and policy, and explains its three research programmes, namely, the International Dispute Resolution Survey Research Programme, the Singapore Convention on Mediation Research Programme and the Belt and Road Initiative Research Programme. The chapter also addresses how SIDRA’s three research areas complement one another as they explore the interlinks between international litigation, arbitration and mediation. For example, the International Dispute Resolution programme aims to fill a gap in the available data on user experiences of international dispute resolution with a view to informing policy and practice, with the key project being the SIDRA Survey on International Dispute Resolution (SIDRA Survey) commissioned by the Singapore Ministry of Law and administered with the support of PwC South East Asia Consulting. The chapter also explores how SIDRA is engaged in a number of collaborations that harness insights from the three programmes, such as through collaboration with the SMU Law Academy (SMULA) and the SMU Centre for AI and Data Governance. The chapter then outlines SIDRA’s networks to various stakeholders within and outside Singapore, including the Singapore International Commercial Court, the Singapore International Arbitration Centre, the Singapore International Mediation Centre, the Singapore Mediation Centre and the Singapore International Mediation Institute, and international organisations including the World Bank Group and national bodies such as the Vietnamese Judicial Academy.

SIAC’s Cross Institutional Consolidation - Complication or Solution?

The Singapore International Arbitration Centre (SIAC) proposal on cross institution consolidation officially presented on 19 December 2017 aims to eliminate borders between arbitral institutions and suggests comprehensive solutions to the problems arising out of related arbitrations. If the proposal is effectively implemented, it seeks to ensure transparency. However, there are certain challenges the proposal may face such as inclusion of the consolidation protocol in the arbitral rules, determination of which institutional rules to apply in the consolidation of arbitration. Few other difficulties such as new fees structure and different scheme of selecting arbitrators can bring forth uncertainties. These challenges would ultimately result in enforcement concerns. This paper therefore seeks to examine and analyse the pros and cons of the SIAC's proposal on cross institution consolidation. Also, if the proposal is a solution or complication to the problem of related arbitrations.

International Commercial Arbitration in India

The Indian arbitral regime has witnessed its share of ups and downs with the constantly over-looming air of criticism, scrutiny and widely expressed aversion towards the mechanism for resolving ICAs. In the past, there have innumerable circumstances when international parties have been victims of the excessive intervention of the court and the enormous delay in reaching a conclusive determination of their disputes through arbitration. Such arbitrations in the past were marred with the procedural and substantive lacunas present at every step on the way in the 1996 Act. Due to such experiences, the arbitral regime in India seemed more and more unattractive with most of such international commercial disputes being centered outside India only to avoid all the hurdles and barriers that 1996 presented. This can be corroborated from the Annual Report released by the Singapore International Arbitration Centre (hereinafter referred to as “SIAC”), which shows that the highest number of filings came from parties with Indian nationality with a total of 91 cases filed. This shows that India was not a preferred destination to carry out arbitration due to the shortcomings of the 1996 Act. In light of these prevailing facts and circumstances coupled with the new policy regime concentrating on foreign trade and investment, it became imperative that an amendment is brought about to cure all the deficiencies that were prevalent in the arbitral regime in India regulated by the 1996 Act. It was with this in light that several changes were introduced through the 2015 Act, which has changed the entire landscape of ICAs and its conduct under the Indian arbitral regime. This paper takes strides towards highlighting the amendments and their impact on ICA with seat in India. The amendments will be analyzed through an in-depth study into the legislative idea behind each of them along with their present-day scope and applicability. Since this paper will be delving into aspects of ICA with seat in India, it will be provisions of Part I of the 2015 Act that will be scrutinized.

SIAC Proposal on Cross-Institution Consolidation Protocol: Can It Be Transplanted into Investment Arbitration?

Investment arbitration has been increasingly criticized as being, among other things, slow, cumbersome and unpredictable, in light of contradictory awards arising from similar factual situations. Recent renewable energy proceedings against Spain, Italy and the Czech Republic have prompted the author to revisit the idea of creating a consolidation facility in order to address some of these short-comings. Unlike earlier attempts, however, which focused on the possibility of consolidating disputes that are conducted under one set of procedural rules, the author, inspired by the recent Singapore International Arbitration Centre (SIAC) Proposal on Cross-Institution Consolidation Protocol, explores the possibility of consolidating disputes that are conducted under different rules. After analysing SIAC’s Proposal, the author assesses the need for a similar instrument in the realm of investment arbitration. The article subsequently discusses existing consolidation mechanisms of NAFTA, certain BITs and newer trade agreements (CETA, TTIP and the EU-Singapore Investment Protection Agreement). The author then considers different aspects of this new consolidation facility. The article concludes with a brief overview of potential hurdles that this consolidation facility might face on route to acceptance.

싱가포르의 분쟁해결문화와 ADR제도

Singapore has witnessed rapid economic growths for a couple of decades due to the inward foreign direct investment. To accomplish this purpose, Singapore tries to transform a small island into the international business hub in East Asia. Concomitantly, Singapore government implements strategy to construct this country as the international dispute resolution hub during last couple of decades. In line with this strategy, Singapore has established Singaporian dispute resolution system, such as Singapore court annexed mediation system, Community Resolution Center, Singapore Mediation Center(SMC), Singapore International Mediation Center(SMIC), Singapore International Mediation Institute(SIMI), Singapore International Arbitration Centre(SIAC), and Singapore International Commercial Court(SICC). Furthermore, Singapore provides an unique Arb-Med-Arb service to disputants. The spectrum of dispute resolution institutions indicates that Singapore is expected to implement a vision of multi-door court house in Singapore.

Recent Developments in International Mediation: Singapore’s Unique Approach

Singapore’s vibrant dispute resolution sector has been growing on the back of a significant rise in commercial transactions in Asia and a corresponding increase in the number and complexity of cross-border disputes. In order to make Singapore stand out as a premier destination for legal services and resolution of disputes for Asia and the world, the Ministry of Law of Singapore concluded that focus needed to be placed on developing the mediation space, particularly to deal with international commercial disputes, as a complement to arbitration and litigation.In April 2013, the Chief Justice and the Ministry of Law appointed an International Commercial Mediation Working Group (“the Working Group”) in April 2013 with the weighty task of making recommendations to develop Singapore into a centre for international commercial mediation. The Working Group’s recommendations were submitted on 29 November 2013 and the three main recommendations were to: (a) establish the Singapore International Mediation Institute (“SIMI”) as a professional standards body; (b) establish the Singapore International Mediation Centre (“SIMC”) as a provider of world-class commercial mediation services; and (c) enact a Mediation Act to strengthen the legal framework to support mediation and enhance enforceability of mediated settlement agreements. SIMI and SIMC were both officially launched on 5 November 2014 and the Mediation Act is currently being prepared by the Ministry of Law. This paper seeks to examine the significance of SIMI and SIMC in the context of the present mediation scene in Asia. In particular, SIMI has a unique tiered accreditation framework aimed at allowing mediators to gradually obtain higher levels of accreditation and ultimately achieve certification over time as they grow in skills, experience and knowledge. SIMC offers user-centric services and products, including an arbitration-mediation-arbitration service in collaboration with the Singapore International Arbitration Centre that allows mediated settlement agreements to be made enforceable as consent arbitral awards. Finally, the paper makes some suggestions in relation to the Mediation Act under development, particularly in view of the experiences of other jurisdictions, including Hong Kong and the United States.

The Indian Arbitration Forum's Best Practices Guidelines for Conduct of Arbitral Proceedings ('IAF Guidelines 2018')

The Indian Arbitration Forum (“IAF”) is an association of leading arbitration practitioners committed to streamlining the conduct of arbitration in India and promoting arbitration as an effective means of dispute resolution in India and abroad. This is a first-of-its-kind initiative by legal practitioners to establish a commercial/arbitration bar in India. Arbitration in India is fast evolving as the preferred dispute resolution mechanism, especially insofar as commercial disputes are concerned. The Indian Arbitration Forum Best Practices Guidelines for Conduct of Arbitral Proceedings (“IAF Guidelines”) was prepared with a view to provide guidance on evolving best practices in the arbitral process. To clarify, if an arbitration is under any specific rules of an institution like ICC, SIAC or MCIA then such rules will be applicable and in case of conflict between this Guidelines and the rules of the institution then such rules of the institution shall prevail. IAF devised these guidelines in partnership with members of COMBAR, the Commercial Bar Association of England and Wales, and in association with Singapore International Arbitration Centre, Mumbai Centre for International Arbitration and Gujarat National Law University. The IAF Guidelines were the result of a five-step process: (i) research of existing international guidelines; (ii) preparation of a questionnaire to understand the gaps in the Indian arbitration practice; (iii) interviews with domestic and international practitioners; (iv) drafting of the guidelines; and (v) broad review of the guidelines. IAF provided the drafting team with indicators regarding the conduct of arbitral proceedings. In order to understand the procedures better, practice notes, rules and guidelines prescribed by leading arbitral institutions were studied. To reconcile the international best practices with the existing realities of arbitration in India, a questionnaire was prepared for the purpose of interviewing practitioners. This checklist was prepared with the assistance of Jasbir Dhillon QC, Rajesh Pillai and Rebecca Zaman. The IAF then identified prominent domestic and international practitioners who would be interviewed for the purpose of this exercise. These included Mysore Prasanna, Jasbir Dhillon QC, Anneliese Day QC, Ketan Parikh, Nakul Dewan, Sherina Petit, Siddharth Dhar and Georges Chalfoun. The drafting team along with IAF team members interviewed these practitioners and the responses of these practitioners received during the individual interviews were recorded for the purpose of aggregating the comprehensive data. The broad range of inputs were analysed and a draft of the IAF Guidelines was prepared on the basis of this analysis, attempting to keep a balance between international best practices as well as practical realities in the Indian context. This draft was then reviewed by legal luminaries like Justice B N Srikrishna (Retd), Justice A P Shah (Retd) including a panel comprising of the IAF members as well as other leading practitioners. After several rounds of review, additions and edits, the IAF Best Practices Guidelines for Conduct of Arbitral Proceedings was formulated into its current form. The IAF team expresses its gratitude to the Gujarat National Law University team comprising of Dr. Vikas Gandhi, Dr. Nidhi Buch and the students, Param Bhalerao, Gladwin Issac, Sakshi Pawar, Bhavya Shukla and Akshata Kumta, who were part of the drafting team as well as the above-mentioned process. Members of the IAF team that drove the abovementioned process were Sahil Kanuga, Vyapak Desai, Raj Panchmatia, Mustafa Motivala, Nusrat Hassan, Promod Nair, Tejas Karia, Shashank Garg, Renu Parekh, Meenakshi Iyer, Soorjya Ganguli, Nandini Khaitan, Neeti Sachdeva, Pranav Mago, Anish Wadia, Rishab Gupta and Manavendra Kane.

W(h)ither adversarial commercial dispute resolution?

International commercial arbitration is part of a wider tapestry of transnational commercial dispute resolution which encompasses both adversarial and consensual forums. While arbitration is pre-eminent in the field today, the increasing discontent directed at the international commercial arbitration industry, and adversarial commercial dispute resolution more generally, cautions us that the status quo cannot remain. This article will hence focus on the challenge to adversarial commercial dispute resolution posed by consensual forums like mediation, and the future of transnational commercial dispute resolution in this changing world. Singapore Rules of Court, Order 110 (2015) Rio Tinto PLC v Vale SA US District Court (SDNY) (2015) Emirates Trading Agency LLC v Prime Mineral Exports Private Limited, English High Court (2014) International Research Corp PLC v Lufthansa Systems Asia Pacific Pte Ltd, Singapore Court of Appeal (2014) HSBC Institutional Trust Services (Singapore) Ltd v Toshin Development Singapore Pte Ltd, Singapore Court of Appeal (2012) SIAC (Singapore International Arbitration Centre)-SIMC (Singapore International Mediation Centre) Arb-Med-Arb Protocol (2014) IBA (International Bar Association) Guidelines on Party Representation in International Arbitration (2013) AQZ v ARA, Singapore High Court (2015)

Submission to the SIAC Arbitration Rules 2016 Revisions Consultation

In August 2015, the Singapore International Arbitration Centre announced that the process of revising its 2013 arbitration rules had begun. This process was commenced with a view to the release of a revised version of SIAC's arbitration rules in mid-2016. Upon this announcement, SIAC commenced the process of consultation for which this submission was prepared.This submission addresses one particular aspect of the SIAC Rules 2013 - the way in which arbitrators identify the substantive law governing the merits of the parties' dispute, where the parties have not themselves made a choice of law. It argues that the Revised SIAC Rules should depart from the position currently taken in Art. 27(1) SIAC Rules 2013 by adopting the closest connection test (rather than the voie directe), and by allowing arbitrators to apply rules of law (rather than only law).

Commercial courts and international arbitration--competitors or partners?

Drawing on the author's extensive personal experience as an international arbitrator, Senior Counsel in Singapore, and the non-resident Chief Justice of the Dubai International Financial Centre (DIFC) Courts, this article examines the relationship between commercial courts and international arbitration in two jurisdictions, Singapore and Dubai. The author discusses the impact that the newly established Singapore International Commercial Court (SICC) will most likely have upon the Singapore International Arbitration Centre (SIAC) to conclude that these two dispute resolution forums will most likely complement one another. The article then moves on to discuss a novel, mutually beneficial interaction between the courts and arbitral institutions through the new Practice Direction of the DIFC which seeks to ‘convert’ court judgments into arbitration awards, thereby allowing successful parties to enforce their court judgments through either arbitration or litigation. United Arab Emirates Civil Procedure Code, Federal Law No. 11 (1992) (Hague) Convention on Choice of Court Agreements (2005) GCC (Gulf Cooperation Council) Convention for the Execution of Judgments, Delegations and Judicial Notifications (1996) Riyadh Arab Agreement for Judicial Cooperation (1983) Singapore Rules of Court, Order 110 (2015) DIFC (Dubai International Financial Centre) Arbitration Law No. 1 (2008) (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Tjong Very Sumito v Antig Investments Pte Ltd [2009] 4 SLR(R) 732. Dalian Hualiang Enterprise Group Co Ltd v Louis Dreyfus Asia Pte Ltd [2005] 4 SLR 646. Halki Shipping Corporation v Sopex Oils Ltd [1998] 1 LLR 465. Hayter v Nelson Home Insurance Co [1990] 2 LLR 265. Ellerine Brothers (Pty) Ltd v Klinger [1982] 1 WLR 1375.

The emergency arbitrator: a full-fledged arbitrator rendering an enforceable decision?

Emergency procedures are becoming increasingly popular in international arbitration. Their effectiveness is however disputed, there being uncertainty as to both the proper status of the subject granting emergency relief—so called emergency arbitrator—and the enforceability of his decisions. This contribution aims at shedding light on the above-mentioned issues. To this end, it first describes the general procedural framework in which emergency procedures are carried out. It then delves into the questions of what the proper status of an emergency arbitrator is and whether emergency decisions are capable of being enforced by state courts, suggesting that the emergency arbitrator is a full-fledged arbitrator rendering decisions that may enjoy (at least a certain degree of) enforceability. Finally, it puts forward a proposal for an international instrument on recognition and enforcement of arbitral interim measures, including emergency decisions, which may enhance their effectiveness. (New York) Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Hong Kong Arbitration Ordinance (2013) Singapore International Arbitration Act (2012) ICC (International Chamber of Commerce) Arbitration Rules (2012) LCIA (London Court of International Arbitration) Arbitration Rules (2014) ICDR (International Centre for Dispute Resolution) Arbitration Rules (2009) SCC (Stockholm Chamber of Commerce) Arbitration Rules (2010) SIAC (Singapore International Arbitration Centre) Arbitration Rules (2013) HKIAC (Hong Kong International Arbitration Centre) Arbitration Rules (2013) NAI (Netherlands Arbitration Institute) Arbitration Rules (2010) Yahoo! v Microsoft, US District Court (SDNY) (2013) Total Fina Elf E&P Congo c Société Nationale des Pétroles du Congo et République du Congo, Cour d’appel de Paris (2003) Swiss Code of Private International Law (1987) English Arbitration Act (1996) Dutch Arbitration Act, Code of Civil Procedure, Book IV (1986) [Wetboek van Burgerlijke Rechtsvordering]

Vive la difference? Convergence and Conformity in the Rules Reforms of Arbitral Institutions: The Case of the LCIA Rules 2014

Many international arbitration institutions have reformed their Rules within the last five years, including the International Centre for Dispute Resolution (ICDR (2009)), Stockholm Chamber of Commerce (SCC (2010)), International Chamber of Commerce (ICC (2012)), Singapore International Arbitration Centre (SIAC (2013)), Hong Kong International Arbitration Centre (HKIAC (2013)) and now the London Court of International Arbitration (LCIA (2014)).The LCIA's reform of its Rules appears to be part of an increasing convergence of the procedures of international arbitration institutions. This is particularly apparent in three aspects of the new LCIA Rules: the new availability of emergency arbitrators; the inclusion of consolidation provisions and rules on the treatment of third parties generally; and the imposition of 'soft' ethical standards on arbitrators, experts and legal representatives. This article examines this phenomenon of convergence among arbitration institutions, and assesses its desirability. Are these second generation reforms to institutional rules similar because they are addressing common user concerns and general teething problems with earlier rules? Or are other influences pushing arbitral institutions towards conformity in their procedures? This article analyses empirical data concerning the extent to which choice and flexibility in procedures are desired by users of arbitration. In light of this data, we consider the extent to which the LCIA rule reforms and other institutional rule reforms are catering to user preference and how this might be improved.

Diminishing Procedural Boundaries in International Arbitration

The surge of cross border trade and transactions has seen international arbitration fast emerging as the preferred mode of dispute resolution. This phenomenon is especially remarkable in the Asian region. The Singapore International Arbitration Centre (“SIAC”) aspires to contribute to this growth as one of the leading arbitral institutions. The objective of this article is to provide an insight into the key features of SIAC Rules. This article has been divided into two parts; the first part discusses how the SIAC Rules are helpful in building bridges in international arbitration between the common law and civil law systems. We have attempted to throw light on how the SIAC Rules may be tailored by the parties to bring about a harmonization in the common law and civil law practices in the conduct of the arbitration proceedings. In the second part of the article, we discuss the two most popular procedures introduced in the SIAC Rules in 2010 i.e. ‘Emergency Arbitration’ and ‘Expedited procedures’. The emergency arbitration provisions enable a party to obtain order(s)/award for urgent interim relief(s) upon commencement of arbitral proceedings but pending the constitution of the main Tribunal. The expedited Procedure provisions give parties the option of having their disputes determined in six (6) months from the date of the constitution of the tribunal.

HKL Group Ltd v. Rizq International Holdings Pte. Ltd. and HKL Group Co. Ltd. v. Rizq International Holdings Pte Ltd.

Relying on the already controversial Insigma Technology Co. Ltd. v. Alstom Technology Ltd. decision, the High Court of Singapore has recently upheld a pathological arbitration clause on the condition that the parties to the dispute obtain the agreement of the Singapore International Arbitration Centre (SIAC) or any other arbitral institution in Singapore 'to conduct a hybrid arbitration applying the International Chamber of Commerce (ICC) rules'. The court rendered its decision in HKL Group Ltd v. Rizq International Holdings Pte. Ltd. and upheld it in HKL Group Co. Ltd. v. Rizq International Holdings Pte. Ltd. This note examines the rationale for the court's decision and whether it was justified in the circumstances. The note also examines whether the court's reasoning has wider and perhaps undesirable implications for international arbitration in the Asia-Pacific region.

Insigma Technology Co. Ltd v. Alstom Technology Ltd: SIAC Can Administer Cases under the ICC Rules?!?

In Insigma Technology Co. Ltd v. Alstom Technology Ltd, the Singapore High Court found valid an arbitration agreement providing for arbitration before the Singapore International Arbitration Centre in accordance with the Rules of Arbitration of the International Chamber of Commerce. In doing so, the High Court rejected the contention that such ‘hybrid’ clauses are pathological. This may give some comfort to parties who have included such clauses in their contracts, but it does not mean that they were wise to do so. The costs of using hybrid clauses can easily outweigh any advantages parties imagine they might gain .

Legal Framework for Alternative Dispute Resolution: Examination of the Singapore National Legal System for Arbitration

Effectiveness of any alternative dispute resolution (ADR) method depends on the national legal system to which it is subjected. In Singapore, the increasing growth in the use of ADR methods may be adduced to developments in the Singapore legal environment. This paper reviews the characteristics of the Singapore national legal system for arbitration. It examines how the legal system facilitates effective use of ADR. By its features, the Singapore national legal system ensures parties’ autonomy but deters parties from taking opportunistic advantage of the voluntary nature of ADR. It enables procedural flexibility, and confidentiality of arbitration proceedings. It insulates the arbitration process from intervention from the Singapore courts and from corruption; and it provides maximum judicial support in the arbitral process. Hence, it ensures that disputes can be brought to a conclusion within a reasonable amount of time, at a reasonable cost, as well as preserving business relationships. The Singapore legal system insures the integrity of arbitration and the independence of arbitrators and arbitral institutions by immunity provisions. In addition, the legal system enhances the use of mediation and conciliation in a sequential tier with arbitration by providing a time limit for mediation or conciliation to terminate should they fail to produce a mutually acceptable settlement. In Singapore, the court system is generally known to be efficient; hence, ADR faces the practical challenge of becoming lengthier than court proceedings. The continuing search for and use of expedited arbitration procedures by arbitral institutions such as the Singapore International Arbitration Centre should reduce this challenge. This paper provides useful information on how a national legal system may be designed to support the use of ADR methods and facilitate their effectiveness.

The Protection Of International Investment - Seminar jointly organised by the Beijing Arbitration Commission (BAC), the Singapore International Arbitration Centre (SIAC) and the Chinese Society of International Law (CSIL) - Beijing (China) - 16-17 July 2005.

The Protection Of International Investment - Seminar jointly organised by the Beijing Arbitration Commission (BAC), the Singapore International Arbitration Centre (SIAC) and the Chinese Society of International Law (CSIL) - Beijing (China) - 16-17 July 2005.